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I/I B RARY
U N I VLR.S ITY
ILL H!51. SUkltf
HON. ELLIOTT ANTHONY,
Judge ol ibe Superior Court of Chicago.
CHICAGO LEGAL NEWS PRINT.
CHAPTER I. This is an Age of Written Constitutions 5
CHAPTER II. The Advantages of Written Constitutions 8
CHAPTER III. The American Constitutional Form of Government the Strong-
est in the World 11
CHAPTER IV. The Ordinance of 1787 The Great Organic Law of the North-
CHAPTER V. The Efforts to Perpetuate Slavery Notwithstanding the
CHAPTER VI. The First Court Ever Held in the Northwest Territory 18
CHAPTER VII. The Organization and Admission of New States 20
CHAPTER VIII. The Admission of Ohio and Indiana into the Union 23
CHAPTER IX. The Admission of Michigan and Wisconsin into the Union 27
CHAPTER X. Illinois and Virginia George Rogers Clark and the Back-
> CHAPTER XI. Illinois County 33
CHAPTER XII. Constitutional Conventions in Illinois...., 38
CHAPTER XIII. The Founders of the Commonwealth 46
CHAPTER XIV. Governor Coles, and his Immediate Friends and Contem-
CHAPTER XV. The Great Convention Struggle of 1823-4 to make Illinois a
Slave State 66
CHAPTER XVI. The Development of Infant Industries, or how Banking can
be Carried on by Politicians 73
; CHAPTER XVII. Repeal of the Black Laws of Illinois. 77
<j CHAPTER XVIII. Mason and Dixon's Line in Illinois 87
''.CHAPTER XIX. The Period Preceding the Calling of the Constitutional
Convention of 1847 91
CHAPTER XX. The Partisan War on the Supreme Court and the Reorganiza-
tion of the Same 93
(i:\pTERXXI.-The Constitutional Convention of 1847 103
CHAPTER XXII. Constitutional Convention of 1862 109
CHAPTER XXIII. Constitutional Convention of 1869-70 116-
CHAPTER XXIV. Is a Constitutional Convention Needed 124
CHAPTER XXV. Radicalism and Conservatism 128
CHAPTER XXVI. Limitations and Restraints are Necessary in all Free Gov-
ernments . . . , -. 136
CHAPTER XXVII. The Power and Scope of a Constitutional Convention.... 139
X CHAPTER XXVIII. Legislative Provisions in Modern Constitutions 143
CHAPTER XXIX. An Examination of Some of the Objections Which Are
Urged against the Present Constitution 145
CHAPTER XXX. The Administration of the Criminal Law in the State of
CHAPTER XXXI. State and Federal Judges 153
CHAPTER XXXII. Constitutional Convention Necessary to Induce the Su-
preme Court to Recognize and Enforce the Statutes Relating to the
Common Law 156
CHAPTER XXXIII. The Address of the Delegates to the People, Showing
the Changes made in the Old Constitution and the Reforms Proposed. . 161
CHAPTER XXXIV. How State Taxes have been Diverted. School Lands
Stolen, and other Abuses under the old Regime, with some Remarks on
the Value of the " Pay as You Go " Policy 171
CHAPTER XXXV. The Organization and Government of Great' Cities 176
CHAPTER XXXVI.--Frequent Changes in the Organic Law of a State not
CHAPTER XXXVII. Illinois ought to be a Model Republic, with a Constitu-
tion and Laws to Correspond 189
CHAPTER XXXVIII. Public Virtue 191
CHAPTER XXXIX. No State will ever be Prosperous under any Constitution
unless the People are Educated 195
CHAPTER XL. The Right of American Citizens to be Protected in Exercising
the Elective Franchise 197
CHAPTER XLI. Conclusion . . 202
"TT'TTTHIN tlie period of seventy-three years the people of
Illinois have held four constitutional conventions and have
become somewhat conversant with constitution-making and political
The genius of our people for statecraft was early developed,
and the number of state-artificers which was then produced, shows
no signs of abatement.
Of the four conventions referred to it has fallen to our lot to be
a member of two of them, one in 1862 and the other in 1870, which
framed our present Constitution.
Many of the members of these conventions were men of great
experience, and whose knowledge of events reach back to the very
beginnings of our history as a State.
It had long been in contemplation by us to write a sketch of
these various conventions, together with an account of events that
preceded and called them into existence, and of some of the public
men that took part in them, when we received an invitation from
the State Bar Association to read a paper before that body upon the
needs of a constitutional convention to revise and amend our
present Constitution. Upon considering the matter we resolved to
at once make use of the materials already on hand, not only by way
of review of some of the most interesting events in our State history,
but to discuss in the light of experience at considerable length the
whole subject of written constitutions and what, if anything, was
required by way of amendments to our own organic law as it at
present exists. Such a work we have ventured to characterize as
a '"'Constitutional History of Illinois," and which may be regarded
as a special study of one phase of our history not hitherto treated
of by any of our historians.
We submit it with great deference to our fellow-citizens, hoping
that we may be able to contribute in some slight degree to a better
understanding of some of the most stirring events in the formative
period of this great commonwealth, and of the men who took part
CHICAGO, January 23, 1891.
This is an Age of Written Constitutions.
T^HE present is an age when the powers of the government are
sought to be defined and limited so that the people may know
their rights, and those who govern may not invade them.
It is an age of written constitutions, and it is a curious fact
that to-day there is not a government in Europe, except those of
Russia and Turkey, but what are constitutional governments; while
upon the American continent, since Brazil became a republic, not
a single monarchy exists. Most European constitutions are usually
found written in some law which has been passed and promulgated
by representatives of the people, which the king or ruler has been
graciously pleased to approve, conferring upon the people the right
of representation and taking part in making the laws; while in the
United States, where it is held that "all power is inherent in the
people and all free governments are on their authority and insti-
tuted for their peace, safety and happiness," a much more elaborate
form is made use of, and the most exact details are required to
define and regulate the sovereign powers and the measure of
authority of all the departments of the government legislative,
executive, judicial, civil and military general and local, and each
and every function of the government.
The problem is to confer authority and so reserve liberty that
each shall serve as a check or balance upon the other, and that each,
without being dangerous in itself, may help and not encroach upon
The days of charters and special privileges have passed away,
and absolute equality before the law is the only condition which
the people of this country will accept or tolerate.
The publicists of Europe hold that all power of government is
derived from God through the instrumentality of kings, while the
political creed of America is that the impartial governor of the
universe has not communicated his attributes of power, wisdom,
justice and mercy to kings only, and denied the least portion of
them to every other class of mankind, but that the only divine
6 CONSTITUTIONAL HISTORY OF ILLINOIS.
right that any king or ruler has is derived from the people them-
Indeed, as Winterbottom says in his "Yiew of the United
States," in 1796:
"The creed of an American colonist was short, but substantial.
He believed that God made all mankind originally equal; that he
endowed them with the rights of life, property, and as much lib-
erty as was consistent with the rights of otbers; that he had be-
stowed on his vast family of the human race the earth for their
support; and that all government was a political institution between
men naturally equal, not for the aggrandizement of one or a few,
but for the general happiness of the whole community."
And one, long after this time, in reviewing the tracks of the
early American pioneers, says :
"Without the infection of wild or social tbeories, they were
animated by a love of liberty and a spirit of personal independ-
ence unknown to the great body of the people of Europe, while at
the same time recognizing the law which united the individual to
the family and to the society in which he is appointed to live; to
the municipalit} 7 and the commonwealth which gave him protec-
tion, and to a great nation which met and satisfied the natural sen-
timent of country."
In this country sovereignty is in the people. In them are those
inherent powers of society, which no climate, no time, no constitu-
tion, no contract, can ever destroy or diminish. In them, as the
supreme power, resides the right of command or the right to insti-
tute organic law, to establish public authority and to compel obedi-
ence to it. On this foundation rose the American superstructure
James Otis once said that there could be no prescription old
enough to supersede the law of nature and the grant of Almighty
God, who had given all men a right to be free; that nothing but
life and liberty were hereditable; that in solving practically the
grand, political problem the first and simple principle must be
equality and the power of the whole.
In its practical sense sovereignty means nothing more nor less
than the power to originate and secure the performance of all gov-
The powers of sovereignty in the people of the United States
THIS IS AN AGE OF WRITTEN CONSTITUTIONS. 7
are parceled out between the Nation and the State, by the creators
of sovereignty itself, that is by the people.
The sixteenth and seventeenth centuries were engaged very much
in discussing the prerogatives of kings, and the contest never died
out till the last heir of the royal house of the Stuarts had passed
In Blackstone's time (1753) prerogative had assumed such definite
shape as to be capable of being defined, and he defines it as follows:
"By the word prerogative we usually understand that special pre-
eminence, which the king had over and above all other persons, and
out of the ordinary course of the common law, in right of his real
dignity. It signifies in its etymology (from prce and rogo) something
that is required and demanded before or in preference to others. And
hence it follows that it must be in its nature singular and eccen-
trical; that it can only be applied to those rights and capacities which
the king enjoys alone in contradistinction to others, and not to those
which he enjoys in common with any of his subjects; for if once
any prerogative of the crown could be held in common with the
subject it would cease to be prerogative any longer, and, therefore,
Finch lays it down as a maxim, that the prerogative is, that law on
the case of the king, which is law in no case of the subject."
St. George Tucker in commenting upon this in his edition of
B'r.ckstone in (1803) says, that " This definition of prerogative is
enough to make a citizen of the United States shudder at the recol.
lection that he was born under a government in which such
doctrines are received as Catholic."
It was one of the wise utterances of Locke, that "The freedom
of a people under Government is dependent upon standing rules
to live by, so that the Government may become a government of
laws and not of men."
The Advantages of Written Constitutions.
rTHHERE has always been, since the Government of the United
-L States was established, and long before, a controversy between
publicists and jurists as to the advantages and disadvantages of
written and unwritten constitutions, and good and plausible reasons
may be assigned why unwritten constitutions should be preferred to
written constitutions, and vice versa. This opens a wide Held and we
shall not enter it. It is sufficient for us to express our decided pref-
erence for a written constitution, rather than an inference from
disconnected facts or customs, which may become the playthings of
judicial tribunals. It gives a strong feeling of right and a power-
ful impulse of action to have the written law clearly on one's side,
and though power, if it comes to the last, may succeed, yet unless
wielded by frenzy will pause before it dares to pass the Rubicon,
and to declare revolution.
A written constitution has the peculiar advantage of serving as
a beacon to apprise the people when their rights and liberties are
invaded or in danger and Thomas Jefferson says : u Though
written constitutions may be violated in moments of passion or
delusion, yet they furnish a text to which those who are watchful
may again rally and recall the people; they fix, too, for the people
principles of their political creed."
If every man in the community had studied political economy
and the science of government, and had been trained to understand
his political rights and duties, and the rights and duties of his
fellow-man, had mastered checks and balances, and would constitute
himself a watchman to see that there were no violations of these
functions and prerogatives, and that no public functionary usurped
any of the rights of the people, then perhaps an unwritten constitu-
tion would be sufficient for all purposes, and possibly be regarded
the best. It could, by common consent, be made to yield to all the
exigencies, wants and necessities of the people, as they arose and
were required, and constitutional conventions would be unknown
and unnecessary. But for a community whose training has been
ADVANTAGES OF WRITTEN CONSTITUTIONS. 9
imperfect, whose opportunities for observation have been limited,
and which has not reached a high degree of development, then a
written constitution becomes indispensable, and is far preferable.
To render a written -constitution safe, however, we admit that
it must provide efficient machinery for its own amendment, and not
be too unyielding but it never should be degraded to that of an
ordinary statute, which may be passed to-day and repealed
Thomas Jefferson once expressed an opinion, that no constitution
ought to go longer than twenty years, without an opportunity being
given to the citizens to amend it. This opinion he based upon the
consideration that by the European tables of mortality it appeared
that a generation of men lasted on the average about that number
of years, and that every succeeding generation, like its predecessor,
had "a right to choose for itself the form of government it
believed most productive of its own happiness; and to accom-
modate to the circumstances in which it finds itself, and that which
it received from its predecessors."
But in expressing this opinion he did not hold it to be necessary
that a constitutional convention should be called together every
twenty years. And we judge from other opinions that he expressed
that it would meet every contingency, if amendments could from
time to time be proposed, and voted upon by the people.
it does not follow that because defects have been discovered here
and there in the structure of an organic law, or that some of its
provisions have fallen short of the requirements or expectations of
the people, that a great convention should be called together to
consider the same and rectify it, when the same result can be
brought about by other and simpler means.
Is our constitution so unyielding in its provisions as to prevent
amendments as speedily as they are required?
And what, allow me to ask, is the grievance that can not now be
remedied by appropriate legislation on the part of the General
A constitution is nothing more nor less than a limitation of
power on the part of the Legislature and in the absence of a pro-
hibitory clause, actually prohibiting the General Assembly of the
State of Illinois from legislating upon any given subject, it is as
omnipotent as that of the British Parliament.
10 CONSTITUTIONAL HISTORY OF ILLINOIS.
If the people of this country were more homogeneous than they
are if they were influenced by the same traditions, the same
general customs and systems of law and structure of government,
but few laws would probably be required, and we would not per-
haps be always striving for something new and employing our
highest courts to settle doubtful questions. But the fact is the
tendency of all of our legislators is in the direction of innovation
and not of conservatism. Here men pass from private to public
employment, with but little knowledge of governmental principles,
and with no knowledge whatever of formulating them, and the
result is that we need constitutional limitations to restrain the
rashness and rawness of those whom we select to act as Solons and
law givers, however fiercely they may beat against the barriers
that hem them in.
Indeed it is the leading principle of our American system of
government to rest its permanency upon laws rather than upon
men, and as a general rule, if the laws are wise and right, it would
make but a very little difference to the people by whom they are
administered, so long as they are actually, honestly and efficiently
Thus the Constitution and the laws are our real rulers; the men
who for the time being are our real rulers, the men who for the
time being are at the head of the government, are the servants of
the laws, and are simply called upon to see that they are properly
respected and administered. And so it may be well that it is even
better to have as rulers honest men of moderate ability, who will
strive diligently to know their duty and to do it, than to have men
of higher capacity, whose consciousness of their great abilities
might tempt them, in the interest of their ambition, to leave the
old and safe ways and experiment in new and dangerous ones.
There are but very few men in this country but what discourse
long and learnedly upon the Constitution and constitutional govern-
ment. There are but very few laws ever passed either by our National
or State Legislatures but what sooner or later are attacked as being
unconstitutional, and it is nothing uncommon for justices of the
peace and those of a little higher grade, to boldly announce that
this or that law need not be obeyed, and if anybody does undertake
to obey the same they shall be indicted and punished for so doing.
The American Constitutional Form of Government the
Strongest in the World.
English theory of government is that its constitution is pli-
able, is always yielding, and can be made to fit any emergency.
Its constitutional^ convention they say is always in session unless
adjourned for short intervals, or prorogued by the supreme ruler of
the empire, whose power to do so dates back to the remote past.
An act of Parliament when passed and approved becomes a part of
the Constitution, while in the United States every law must be sub-
ject to a still higher law, to wit, an organic law, which no power can
change or destroy except by certain methods prescribed by the
people themselves. It is true that English jurists and English states-
men constantly refer to their constitution, and when they refer to
an act as being unconstitutional they mean that it conflicts with
their system of government and with the principles embodied in
Magna Charta, the Bill of Eights, the Petition of Rights, the
Habeas Corpus Act or Act of Settlement, but they can refer to no
great body of organic law or established system of government, out-
lined on parchment or paper, which has ever been formally adopted
and promulgated by a vote of the people, as the rule and guidance
of rulers and ruled, and they glory in this as something remarkable
and as evidence of the highest wisdom. Indeed the tories of Eng-
land have never ceased to laugh at and ridicule our constitution,
but we think that the time will come when it will be taken as a
model for every government in Christendom, and every government
of the world will become a representative government.
Mr. Gladstone, the great English liberal, deserves to be excepted
from most of the English statesmen of past and present ages, for
he says: "I think the Constitution of the United States represents
the most admirable creation that has ever been produced by one
effort of human intelligence." If these are his sentiments it is no
wonder that he is in favor of Home Rule in Ireland, and every
other country where intelligent human beings have their abode.
When the constitution of this country was drafted, but few
12 CONSTITUTIONAL HISTORY OF ILLINOIS.
such documents had ever seen the light. " It consisted of a few
sheets of paper, which, when held in' the hands of the secretary of
the convention that formed it, appeared so weak, so frail and
imperfect that it seemed as if it would have but very little force
and effect in binding together the various States of the Union or
commanding the respect of the people." It was in fact a mere
skeleton, and the powers conferred upon the new government were
merely enumerated but not defined. Their definition would ulti-
mately depend upon the extent to which it would be prudent or
practicable to assert and employ them. Skill, courage and energy
would make good a broad definition. Timidity, cowardice or dis-
loyalty would shrivel them into insignificance. To-day our govern-
ment is, in my judgment, the strongest government on earth.
We begun our national life by adopting a form and system of
government by vote of the people, and so did most of the States
constituting the American Union.
It is true that a number of the States were granted charter
governments, some of which existed until long after the Revolution
notably Connecticut, which existed under the charter of Charles,
in 1662, down to 1818, and Rhode Island, from 1665 down to 1842
but the people established their own governments without any
authority from the Crown, and afterward procured the charters,
which conferred the same authority they had already exercised.
The people elected their governors and assemblies, and the king
reserved no power to veto their laws.
The traveler to Europe as he visits country after country, and
sees in many of them the sad results of povert} 7 , misery and mis-
government, is moved with pity.
France, Spain, Italy, Austria, Bohemia, Poland and Turkey are
not advancing with rapidity, and there is much in them that may
be regarded as benighted. It is true that France, Spain and Italy
have grappled with many of the social problems of the age, and
have taken advantage of steam and electricity and many of the
modern appliances with which we are so familiar, but these you
meet with in the cities and along their crowded thoroughfares;
but back in the country is " the stillness of the ages." The people
stand aghast or remain stolid and indifferent. They are a hun-
dred years behind the age. The absence of the school house is
noticeable everywhere, while the night of the middle ages seems to
AMERICAN GOVERNMENT THE STRONGEST. 13
have settled down upon the rural population of Bohemia, Poland
and Austria, and that of Italy and France is destitute of all enter-
prise. The Turkish Empire is in a worse condition than in the age
of Theodosius, and seems to be incapable of regeneration.
There are yet large portions of Europe which seem to have
come to a standstill, and to have arrived at
" That Ia8t dread mood
Of sated lust and dull decrepitude.
No law, no art, no faith, no hope, no God.
When round the freezing founts of life in peevish ring,
Crouched on the bare-worn sod,
Babbling about the unreturning spring,
And whining for dead creeds that can not save,
The toothless nations shiver to their grave."
In this country we are happy to say things are different, and
efforts at reform are observable everywhere. Reforms in the laws
and in the methods of domestic government are matters of State
concern, and under our form of government the powers reserved to
the people in these respects embrace nearly every governmental
power essential to a wise and liberal government.
. The Constitution of the United States, in fact, enjoins and pro-
motes, instead of restricting, the best possible domestic govern-
ment, republican in form, which the people can devise for their
The National Legislature has its limited range of legislative
powers; the State Legislatures have the rest.
Forty-two State Legislatures keep watch and ward against
National encroachment, and the Supreme Court of the United States
towers above them all, directing, restraining and nullifying the
action of either National or State Legislature which infringes the
The States of this Union are unfettered in their powers to regu-
late their domestic affairs, except in a very few particulars. The
form of government which we adopt must be republican in type,
the rights of the citizens must be respected, and in the language of
our Bill of Rights " elections must be free and equal," even if it
requires force to make them so.
Our interests center in domestic arid local affairs.
" We are interested in the concerns of our neighborhood, town,
county and State. Aside from the post-office officials, we rarely
14 CONSTITUTIONAL HISTORY OF ILLINOIS.
come in contact with a Federal officer, except now and then a mili-
tary or naval officer on leave of absence. If we take an interest in
moral, social, educational or humanitarian reforms the Nation can
not lawfully help us; our field is the State or under its favor."
The Ordinance of 1787 The Great Organic Law of the
IN the history of every country there are supreme events to
which may be traced the influence that shaped the destiny of
the people for good or evil; in that of the United States it is custom,
ary to refer to the Declaration of Independence and the adoption
of the Constitution in encomiastic phrase, as exhibiting wisdom and
genius of the highest order. But whatever may be said of these
may be applied to the ordinance of 1787, with equal justice.
Aye, more; the spirit of the ordinance has conferred blessings
in addition to those derived from the Constitution upon the citizens
of the States erected under its provisions. "Upon the surpassing
excellence of the ordinance," said Judge Timothy Walker, " no
language of panegyric would be extravagant. The Romans would
have imagined some divine Egeria for its author. It approaches
as nearly to absolute perfection as anything to be found in the
legislation of mankind; for, after the experience of fifty years, it
would perhaps be impossible to alter without marring it."
In short it is one of those matchless specimens of sagacious fore-
cast, which even the reckless spirit of innovation would not venture
to assail. As long as human government shall endure, the influence
for good of this remarkable charter shall be witnessed. It was the
one really great act of legislation by Congress under the old Con-
federation, and it was the happy fortune of Arthur St. Clair to be
the president of the body at that time and have the opportunity to
give the measure his hearty support. 1 St. Clair papers, 118.
It was of this ordinance that the great Daniel Webster, in his
first speech upon Foot's Resolution in the Senate of the United
States, on the 20th of January, 1829, said :
THE ORDINANCE OF 1787. 15
" At the foundation of the Constitution of thes6 new North-
western States, lies the celebrated ordinance of 1787.
" We are accustomed, sir, to praise the law givers of antiquity;
we help to perpetuate the fame of Solon and Lycurgus, but 1 doubt
whether one single law of any lawyer, ancient or modern, has pro-
duced effects of more distinct, marked and lasting character than
the ordinance of 1787. That instrument was drawn by Nathan
Dane, then and now a citizen of Massachusetts.
" It was adopted, as I think I have understood, without the
slightest alteration; and certainly it has happened to few men to be
the authors of a political measure of more large and enduring con-
sequence. It fixed forever the character of the population in the
vast regions of the Ohio, by excluding from them involuntary ser-
vitude. It impressed on the soil itself, while it was yet a wil-
derness, an incapacity to sustain any other than freemen. It laid
the interdict against personal servitude in original compact, not
only deeper than all local law, but deeper also than all local consti-
tutions. Under the circumstances then existing, 1 look upon the
original and seasonable provision as a real good attained. We see
its consequences at this moment, and we shall never cease to see
them, perhaps, while the Ohio shall flow. It was a great and salu-
tary measure of prevention."
In these late years many publications have been put forth to show
that Nathan Dane was not the author of the ordinance of 1787,
and the claim of Dr. Manasseh Cutler, of Massachusetts, has been
most strenuously urged. We do not deem it necessary to engage
in the discussion of this subject at this time, and are content to
leave it to contemporary history.
But there is one thing that may be affirmed of the ordinance of
1787, and that is it was the first great Constitution which was pre-
pared in advance to govern and control a vast territory that was
soon to develop into a great commonwealth.
" Save New England alone, there is no section of the United
States embracing several States, that is so distinct an historical unit,
and that so readily yields to historical treatment, as the old
"It is the part of the great West first discovered and colonized
by the French. It was the occasion of the final struggle for
dominion between France and England in North America. It was
16 CONSTITUTIONAL HISTORY OF ILLINOIS.
the theatre of one of the most brilliant and far reaching military
exploits of the Revolution. The disposition to be made of it at the
close of the Revolution, is the most important territorial question
treated in the history of American diplomacy. After the war the
Northwest began to assume a constantly increasing importance in
the national history. It is the original public domain and part of
the West first colonized under the authority of the national gov-
ernment. It was the first and the most important territory ever
organized by Congress. It is the only part of the United States
ever under a secondary constitution like the ordinance of 1787."
Out of this territory five great States have been carved, and
each one has framed a constitution for itself, and there is probably
no region of the world where constitution making has been indulged
in to such an extent, and in no region where the science of
government is better understood.
The Efforts to Perpetuate Slavery Notwithstanding- the
whole country was, from tjie earliest period, devoted to
-A- freedom, but it is quite astonishing at this day, to know how
early and what persistent efforts were made to establish and per-
petuate slavery in this territory, notwithstanding it was expressly
prohibited by the ordinance of 1787.
The French residents of St. Vincents and at Kaskaskia and
Cahokia had boon permitted to hold slaves by the king of France,
and this permission was continued under the government of Great
Britain, and was not interfered with during the territorial period.
Some slaves were removed to the Louisiana Territory, but others
were retained as indentured servants. Memorials soon began to
pour into Congress asking a suspension of the sixth article.
The first of these, signed by John Edgar, and the others, were
reported on May 12, 1796, by Joshua Coit, of Connecticut, to
whom they had been referred, adversely.
In December, 1802, a meeting of citizens of the Indiana Terri-
tory, held at Vincennes and presided over by "William Henry Har-
EFFORTS TO PERPETUATE SLAVERY. 17
risen, resolved to make an effort to secure a suspension of the sixth
article of the ordinance.
A memorial was drawn up, and in February following, it and a
letter from Mr. Harrison were referred to a special committee of
which John Randolph, of Virginia, was chairman. March 2, 1802,
Mr. Randolph reported the following resolution:
Resolved^ That it is inexpedient to suspend, for a limited time, the
operation of the sixth article of compact between the original
States and the people and States west of the river Ohio.
This resolution was accompanied by these most pertinent and sen-
sible remarks: "The rapid population of the State of Ohio suffi-
ciently evince, in the opinion of your committee, that the labor of
slaves is not necessary to promote the growth and settlement of
colonies in that region ; that this labor, demonstrably the dearest
of any, can only be employed to advantage in the cultivation of
products more valuable than any known to that quarter of the
United States; that the committee deem it highly dangerous and
inexpedient to impair a provision wisely calculated to promote the
happiness and prosperity of the Northwestern country, and to give
strength and security to that extensive frontier. In the salutary
operation of this sagacious and benevolent restraint it is believed
that the inhabitants of Indiana will, at no distant day, find ample
remuneration for a temporary privation of labor and of emigra-
In March, 1804, C?esar Rodney, of Delaware afterward
Attorney General of the United States reported the resolution of
a special committee in favor of the suspension of the inhibition
for ten years.
A similar report was made in 1806 by James Garnet, of Vir-
ginia; and in 1807 Mr, Parker, delegate from Indiana, reported
favorably on a memorial of William Henry Harrison and the Ter-
ritorial Legislature praying for a suspension of the sixth article of
the ordinance. But subsequently no action was ever taken by the
House on these favorable reports. Subsequently General Harrison
and his Legislature went before the Senate, and a special committee,
consisting of Mr. Franklin, of North Carolina, Mr. Kitchell, of New
Jersey, and Mr. Tiffin, of Ohio, was appointed.
They brought in an adverse report, and that put an end to the
efforts to destroy the anti-slavery clause of the ordinance.
18 CONSTITUTIONAL HISTORY OF ILLINOIS.
What if Ohio had formed a slave State constitution in 1802.
What if Illinois had actually made the proposed change in 1824?
What would Congress and the Supreme Court possibly have done
with the hard questions that would have arisen in such a contin-
gency? And if one or both of those States had become slave States,
what then? What would have happened if slave State men had
been in a majority in Ohio, Indiana and Illinois, no one can do more
Fortunately, at the decisive tests, the free State men were in
the majority. Moreover, the ordinance helped to create the
majority as well as to protect it against assault. Governor
Reynolds, who had lived in Illinois since 1800 and who was a slave
State man in 1824, although he afterwards rejoiced at his own
defeat, said in 1855: "This act of Congress was the great sheet
anchor that secured the States of Ohio, Indiana and Illinois from
slavery. I never had any doubt but slavery would now exist in
Illinois if it had not been prevented by this famous ordinance."
The First Court Ever Held in the Northwest Territory.
county of Washington, having within its limits about half
-A. of the present State of Ohio, was erected on the 26th of July,
1788. Officers for the militia were appointed. The governor
appointed three distinguished gentlemen justices of the peace, viz.:
Rufus Putnam, Benjamin Tapper and Winthrop Sargent, and on
the 30th of August, established a Court of Quarter Sessions, of
which he appointed another distinguished citizen and soldier, Return
Jonathan Meigs, clerk. Gen. Putnam was also made judge of pro-
bate, with Colonel Meigs as clerk.
Laws having now been framed, civil officers appointed there-
under, a county erected, and the population having increased on
the Ohio to one hundred and thirty-two souls, there remained
to complete the Government only the formal inauguration of the
judiciary; with just laws, bench and forum, the liberties of the
people would be made secure. Tuesday the 2d day of September,
1788, was the day set apart for the ceremony.
FIRST COURT IN NORTHWEST TERRITORY. 19
The account of an eye witness enables us to enter into the spirit
of the occasion and to feel, after an interval of more than a hundred
years, something like a just appreciation of the greatness of the
work of those Revolutionary heroes.
It is the duty, as it should be the pleasure, of all who enjoy the
blessings conferred by the most liberal Government, and equal and
beneficent laws, to study the sources of these and the character of
the men who framed and established them.
They builded for posterity. The scene is laid at Marietta at the
mouth of the Muskingum, September 2, 1788. On that memorable
first Tuesday of September, 1788, the citizens, Governor St. Clair
and other territorial officers and military from Fort Harmar, being
assembled at the point, a procession was formed, and as became the
occasion, with Colonel Ebenezer Sproat, sheriff, with drawn sword and
wand of office, at the head, marched up a path that had been cut
through the forest, to the hall in the northwest block-house of
Campus Martins, where the whole counter-marched, and the judges,
Putnam and Tapper took their seats on the high bench. Prayer was
fittingly offered by our friend, Reverend Mariasseh Cutler, who was
on a visit to the new colony, after which the commissions of the
judges, clerk and sheriff were read and the opening proclaimed in
deep tones by Colonel Sproat in these words: " O, yes! a court is
opened for the administration of even-handed justice, to the poor
and the rich, to the guilty and the innocent without respect of per-
sons; none to be punished without trial by their peers, and then in
pursuance of laws and evidence in the case."
Paul Fearing, Esq., was admitted as an attorney and was the
first lawyer in the territory. This was the opening of the Com-
The Indian chiefs who had been invited by Governor St. Clair to
attend a convention were curious witnesses of this impressive scene.
Ou the Tuesday following September 9th, the first Court of
Quarter Sessions was held in the southeast block-house, occupied
by Colonel E. Battelle. Ilildreth describes this event as follows :
"Colonel Meigs, clerk, read the general commission issued by
the governor, after which Colonel Sproat's deep bass voice com-
manded the solemn attention of all.
"General Rufus Putnam and General Benjamin Tupper were
all the justices of the quorum, and Isaac Pierce, Thomas Lord and
20 CONSTITUTIONAL HISTORY OF ILLINOIS.
Colonel Return Jonathan Meigs assistant justices; Colonel Meigs
was also clerk. Paul Fearing was admitte'd an attorney of this
court, and appointed court counselor for the United States in the
county of Washington.
"The grand jury was constituted as follows: William Stacy,
foreman; Nathaniel Gushing, Nathaniel Goodale, Charles Knowles,
Anselm Tup per, Jonathan Stone, Oliver Rice, Ezra Lunt, John
Matthews, George Ingersol, Jonathan Devol, Samuel Stebbins,
Jethro Putnam and Jabez True. The charge was given with much
dignity and propriety by Judge Putnam. At one o'clock the
grand jury retired, and the court adjourned for thirty minutes. At
half past one the court again opened, when the jurors entered and
presented a written address to the court, which, after being read,
was ordered to be filed. Judge Putnam replied to the address.
There being no suits before court, it was adjourned without day."
St. Clair Papers.
The Organization and Admission of New States.
ON Friday, the 5th of October, 1787, Congress elected General
Arthur St. Clair governor of the Northwestern Territory;
James M. Varnum, Samuel Holden Parsons and John Armstrong,
judges, and Winthrop Sargent, secretary. John Armstrong having
declined the office of judge, John C. Cleves Sy mines was appointed
to till the vacancy. Judge Varnum died January 10, 1789, and
Parsons, 1790. These vacancies were filled by the appointment of
George Turner and Gen. Rufus Putnam, an old revolutionary
soldier who had taken up his abode at Marietta, at the mouth of
the Muskingum. Judge Putnam served until 1796 when he
resigned to accept the office of surveyor-general. Joseph Gill-
man, of Point Harnar, was appointed to the vacancy. Judge
Turner removed from the Territory and resigned in 1796. In his
place Return Jonathan Meigs was appointed in February, 1798.
There were no further changes until Ohio was erected as a State.
At this time no congressional legislation had taken place to carry
ORGANIZATION AND ADMISSION OF NEW STATES. 21
into effect the ordinance, and General St. Glair improved the earliest
opportunity after the assembling of the First Congress under the
Federal Constitution to secure the necessary action. In July, 1789,
Mr. Fitzsimmons, of Pennsylvania, reported in the House of Rep-
resentatives a bill which had been drafted by St. Clair for the
government of the Northwestern Territory, which passed the
House and Senate without opposition. This act gave the sanction
of the National Legislature to all of the important provisions of the
ordinance, including the compact for the inhibition of slavery, which
was a formal assertion of the right of the National Legislature to
regulate that institution in the Territories.
By the ordinance of 1787, the governor and judges which
were to be selected were empowered to adopt and publish such
" laws of the original States " as they deemed fit and necessary,
reporting them to Congress from time to time, which laws were to
continue in force until the organization of the General Assembly,
unless disapproved by Congress. This method of legislation was
followed in constituting all the Territories carved out of the old
Northwest, except Wisconsin in 1836, and also in the act of 1790,
for the territory south of the Ohio.
This Legislature thus constituted, soon found that their author-
ity was altogether too limited, and without any regard to the pro-
visions of the ordinance of 1787, commenced to legislate de novo.
The Legislature met at various times and places at Marietta,
Cincinnati and Vincennes,and promulgated laws; but among the very
first ones in June, 1795, which was copied from an old Virginia stat-
ute of the colonial period, was one which provided that " the com-
mon law of England and all general statutes in aid of the common
law prior to the fourth year of James I, should be in force in the
territory." The other laws passed in 1795, were principally derived
from the statute book of Pennsylvania.
The next thing in order was to constitute counties in order to
provide for local governments, and while these counties were riot
as large as those that Virginia had bounded on the west by the
South Sea or even by the Mississippi river, they were still of truly
imperial proportions. Washington county, for example, reached
from the Ohio to Lake Erie and from the Pennsylvania line to the
Ctiyahoga-Tuscarawas line and the Scioto; St.Clair county embraced
all Southern Illinois. But Wayne county, organized in 179B, was
the most extensive of all, including all the territory within the fol-
22 CONSTITUTIONAL HISTOKY OF ILLINOIS.
lowing limits: North by the International boundary line, east by
the Cuyahoga, the portage path and the Tuscarawas; south by a
line reaching from the forks above Fort Laurens; west and north-
west to the head of the Miami in the Ohio; thence northwest to
the portage between the Miami of the lake and the Wabash, where
Fort Wayne now is, and thence northwest to the head of Lake
Michigan; and west by a line running north to the International
boundary, including all the lands in Wisconsin draining eastward to
the same lake.
It is needless to say, that as time passed, the original counties
had to be divided into smaller ones, and that the General Assem-
bly, after 1799, claimed the power to make the subdivision,
but the governor denied the Assembly's claim, and vetoed its
bills erecting new counties, the result being a controversy that was
finally carried to Congress and decided against him. Much of the
bitterness which was engendered by this controversy, is said to have
been due to land speculators, who were anxious to organize new
counties in order to provide for office holders, and also for the
profits that might be derived from the location of county seats.
THE PAN HANDLE.
In the beginning Virginia hadl'been organized by a charter of
James I, in 1609, with movable boundaries on the west, extending
" up into the land throughout from sea to sea, west and northwest,
so that as settlers took possession of the country jurisdiction was
extended over them. The authorities of that old commonwealth
claimed the earth. In 1738 the General Assembly created Augusta
county, bounding it on the east by the Blue Ridge, and on the west
and northwest by " the utmost limits of Virginia, whether these
limits were the Pacific Ocean or the Mississippi river. They
included all western Pennsylvania. It took years to settle the
disputes which this claim of Virginia gave rise to, and it was not
until 1779 that commissioners appointed by the respective States
met at Baltimore and agreed upon common boundaries, which was
"To extend Mason and Dixon's line due west live degrees of longi-
tude, to be computed from the river Delaware, for the southern
boundary of Pennsylvania, and that a meridian line drawn from
the western extremity thereof to the northern limit of the said
State, be the western boundary of Pennsylvania forever." This con-
tract was duly ratified by the Legislatures of the two States. In
THE ADMISSION OF OHIO AND INDIANA. 23
1785 Mason and Dixon's line was extended and the southwestern
corner of Pennsylvania established.
The "Pan Handle" is what was left of Virginia east of the
Ohio river and north of Mason and Dixon's line after the bound-
ary was run from this point to Lake Erie, in 1786.
When the State of Ohio was formed, in 1802, the " Pan Han-
dle" first showed its beautiful proportions on the map of the United
States. It received its name in legislative debate from Hon. John
McMillan, delegate from Brooke county, to match the Accomac
projection, which he dubbed the Spoon Handle.*
The Admission of Ohio and Indiana into the Union.
IN May, 1800, an act was passed by the Congress of the United
States, dividing the Northwest Territory by what is known as
the Greenville line, from the Ohio up to Fort Recovery, and thence
directly north through Michigan. All eastward of this boundary
continued to be the Northwest Territory.
The country westward was established as the Indiana Territory,
but in all other respects was governed by the ordinance.
Chillicothe and Vincennes were made the seats of government
of the respective districts or territories until otherwise ordered by
On April 30. 1S02, an act was passed authorizing a convention
of delegates to be elected in September, and a convention to be
held November 1st, at Chillicothe, to determine whether to estab-
lish a State government, and, if so, to proceed at once to form and
adopt a constitution, provided the same should be republican in
form 'and conform to the compact of the ordinance of 1787. On
the 29th of November a constitution was adopted without being
submitted to a vote of the people, the enabling act not requir-
The action of the people thus taken was reported to Congress*
together with the constitution which had been adopted by the
convention, and asking for its approval.
*Creg. Hist, of Wash. Co., Pa.; Old Northwest, p. 109, note.
24 CONSTITUTIONAL HISTOEY OF ILLINOIS.
But before this was done a question was raised whether Mr.
Fearing, who, it will be recollected, was the first lawyer ever
admitted to the bar of the State of Ohio, and who was then a dele-
gate in Congress, was entitled to his seat as a delegate which was
not settled until January 31st. Then a further delay took place in
regard to certain " additional donations" which the convention had
proposed, which were finally consented to by a bill which was not
passed until March 3, 1803.
The Senate also had taken up the subject by a bill introduced
January 5th, to " provide for giving effect to the laws of the United
States, within the State of Ohio." A communication was pre-
sented from "Worthington on the 7th, as agent, inclosing a copy of
the State Constitution. A committee was directed to report what
legislative measures, if any, were necessary for admitting the State
of Ohio into the Union, and extending the laws of the United
States over the State. The bill reported by this committee, after
reciting that a constitution and State government had been formed
by the people pursuant to the enabling act, passed by Congress, and
that they had given it the name of the State of Ohio, ordained that
it be established as a judicial district of the United States; that a
district court be organized, and hold its term on the first Monday
in June, at Chillicothe ; and that the laws of the United States
should be of the same force and effect in the said State as else-
where in the United States. This bill was passed by Congress
Hufus King, in his work on Ohio, in discussing this matter,
among other things says :
" Here, then, were two acts of Congress recognizing the State of
Ohio, but no State yet established which could accept or act upon
them; and the Constitution expressly recognizing the Territorial
government as in force until the State government should be estab-
lished. The elections were held January llth.
The first General Assembly met at Chillicothe on the 1st of
March. Upon organizing aud canvassing the votes for governor,
Edward Tiffin was declared to be elected. In the course of the
session Return Jonathan Meigs, Jr., Samuel Huntington and "Will-
iam Sprigg were appointed judges of the Supreme Court. Thomas
"Worthington and John Smith were chosen as Senators to Congress,
and an act passed for holding an election of a representative to
Congress, on June llth. Jeremiah Morrow was elected. But
THE ADMISSION OP ottio Artr> INDIANA. 25
Congress had adjourned on the 3d of March, and the Senators and
Representatives of Ohio were not actually admitted until the next
As there was no formal act of admission by Congress, much
dispute has arisen as to the time when Ohio was admitted as one of
the United States, the various hypotheses ranging all along from
the date of the enabling act, April 30, 1802, to the actual seating
of her Senators and Representatives in Congress, October 17, 1803.
It is quite clear that the enabling act did not form the State. It is
also certain that the inchoate State, which was framed by the con-
vention, was postponed, by its express submission, to the Territorial
government until the State government could be formed and set in
operation. The earliest day at which this can be said to have
occurred was at the meeting of the Legislature on the first day of
The law-making power being the repository and paramount
representative of the power and sovereignty of the State, the Terri-
torial government on that day ceased, and Ohio became a State in
This was the view of the question subsequently adopted by
Congress. In March, 1804, Judge Meigs, for himself and his asso-
ciates of the Territorial court, presented a petition stating that they
had continued to exercise the duties until April 15, 1803, and had
applied at the treasury for payment of their salaries accordingly.
The accounting officers, on the advice of the attorney -general,
had refused to allow it beyond November 29, 1802, the day on
which the State Constitution and form of government had been
adopted. The judges had thereupon applied to the Legislature of
Ohio, and they likewise refused, holding it to be an obligation of
the United States.
After reports by two committees, and a warm debate and close
division in committee of the whole, an act was passed February 21,
1806, directing the salaries of the Territorial officers to be allowed
and paid at the treasury until March 1, 1803.
This, therefore, may be deemed an authoritative decision on
The instrument so adopted, it would be respectful to pass in
silence. It was framed by men of little experience in matters of
State, and under circumstances unfavorable to much forecast.
With such a model of simplicity and strength before them as
26 CONSTITUTIONAL HISTORY Of ILLINOIS*
the National Constitution, which had just been formed, the wonder
is that some of its ideas were not borrowed. It seems to have been
studiously disregarded; and Ohio, as well as some States further
westward, which her emigrant sons with filial regard induced to
adopt her example, has suffered ever since from a weak form of
government made up in haste, and apparently in mortal dread of
Governor St. Clair. He declined to be a candidate for the office of
governor, but unluckily not until the convention had adjourned.
In after years Ohio's greatest and wittiest governor was wont
to say, that, after passing the first week of his administration with
nothing to do, he had taken an inquest of the office, and found that
reprieving criminals and appointing notaries were the sole "flowers
of the prerogative."
Briefly stated, it was a government which had no executive, a
half-starved, short-lived judiciary, and a lop-sided Legislature.
This department, overloaded with the appointing power which
had been taken away from the executive, became so much depraved
in the traffic of offices, that, in an assembly where there was a tie
both between the Democrats and the Whigs, two "Free Soilers"
held the balance of power, and were permitted to choose a United
States Senator, in consideration of giving their votes, for every
other appointment, to the party which aided them in this supreme
exploit of jobbery. A new constitution put an end to this, but the
shadow of St. Clair still predominates.
One occurrence in the 'convention deserves notice. In terms
for the qualification of voters, as at first adopted, the right of suf-
frage had been conferred upon negroes and mulattoes. But on a
revision, a motion to strike this out was carried only by the casting
vote of the President a strange prelude to the rigorous "Black
Laws" soon afterward adopted by the Legislature.
The admission of Indiana was effected without opposition and
without causing a single ripple on the surface of public affairs.
In response to a petition from the Territorial Legislature, Con-
gress passed an enabling act April 19, 1816, defining the bounda-
ries and providing for the election of delegates and the calling of
a convention to frame a constitution.
The convention convened at Cory don June 10-29, 1816, and
framed a constitution, and the State was admitted into the Union
December 11, 1816.
The Admission of Michigan and Wisconsin into the Union.
HUE history of the admission of Michigan into the Union, forms,
perhaps, quite as interesting a chapter as any in our annals.
'No other part of the United States has seen so many changes of
national and local jurisdiction. It has belonged to France, to Eng-
land and to the United States.
From 1796 to 1803 it was part of the Northwest Territory, from
1803 to 1805 a part of Indiana, and then an independent territory
until its admission into the Union, in 1837. In 1832 the people, at
a popular election, cast a large majority vote in favor of entering into
a State government. Proceeding upon the theory of the Federalists
in 1802, that no enabling act was necessary, the Territorial Legis-
lature, January 20, 1835, passed an act calling a convention to
frame a constitution, and designating April 4th the day for the elec-
tion of delegates. The election was held; the convention assembled
at Detroit, May llth to June 29th, and a constitution was drawn up
and ratified November 2d. President Jackson laid it before Con-
gress in a special message. A boundary contest immediately
sprang up between Ohio and Indiana, which led to "war," and the
marshaling of political and military forces, but no blood was shed.
A great presidential contest was imminent, and Andrew Jackson
was interested in the candidacy of Martin Van Buren. The State
of Arkansas also stood at the door knocking for admittance, and the
administration party was anxious that both should be admitted in
time to vote, for it was expected that both would be democratic; but
Michigan was a free State and Arkansas was a slave State, and
although it was understood that in this scale, one would balance the
other, there was yet an anxiety on either side lest the other should
get the advantage.
Acts for the admission of the two States were finally approved
June 15, 1836 ; the one admitting Arkansas unconditionally, the
other Michigan with certain conditions relating to its boundaries,
which were required to be assented to by a delegated convention
called to sit at Ann Arbor September 4th. The convention rejected
28 CONSTITUTIONAL HISTORY OF ILLINOIS.
the propositions and conditions. This caused a great disappoint-
ment among the politicians, and the governor was importuned to
call another convention to consider the matter, but he replied that
there was no time to call another, and he had no authority to do so.
The enterprising citizens of that commonwealth were, however,
equal to the emergency and accordingly five citizens, " in the name
of the people in their primary capacity," called a convention to
meet at Ann Arbor December 14th, which it was afterward ascer-
tained to be in accordance with a democratic scheme formed at
Washington. The convention was dubbed the " frost-bitten con-
vention," assumed " sovereign powers," assented to all the terms
and conditions provided in the act of Congress, and adjourned.
They reported their action to the House, and, to the astonishment
of the people of Michigan and the civilized world, Congress
accepted the action of this convention as amply sufficient and as
meeting the requirements of the act of admission, and then and
there admitted Michigan into the Union, but the electoral vote was
The admission of Wisconsin into the Union was not accompa-
nied by such "signs and portents" as that of Michigan, and was
not effected until two constitutional conventions had been held and
two constitutions framed, one of which, on being submitted to the
people, was rejected, and the other was not adopted until after the
lapse of several years after the first one was rejected; and it was
not until May 29, 1848, that the State became a member of the
A controversy first arose between Michigan and Wisconsin as
to what was to be her future boundaries, and finally led to a divis-
ion of the great peninsula which commences in the region of Green
Bay and extends to the shores of Lake Superior. Then the people
demanded a restoration of that portion of Illinois which includes
many of the northern counties of the State, and, strange to say,
were aided and assisted in this claim by large numbers of the inhab-
itants of those counties, who sympathized with the people of Wis-
consin. Public meetings were held in various Illinois towns, and
adopted resolutions in favor of the Wisconsin claim, and on the 6th
of July, 1840, a convention was held at Rockford, which declared
that the fourteen northern counties belonged to Wisconsin, and
recommended the people to elect delegates to a convention, to be
held at Madison in November, for the purpose of adopting such
ILLINOIS AND VIRGINIA, 29
lawful and constitutional measures as may seem to be necessary and
proper for the early adjustment of the southern boundary.
In 1842 the territorial governor sent an official communication
to the governor of Illinois, informing him that the Illinois juris-
diction over the frontier counties was accidental and temporary.
Great excitement ensued, and the people were kept in a contin-
ual agitation over the boundary question, State banking and various
other matters, and, as before stated, it was not until May 29, 1848,
that Wisconsin was admitted into the Union.
Illinois and Virginia George Rogers Clark and the Back-
THE individual enterprise of Col. George Rogers Clark to lead
an expedition into the Illinois country and drive out the
English, French and Indians that had their headquarters at Kas-
kaskia and neighboring villages, or make them acknowledge
allegiance to the Americans, was one worthy of the daring and
genius of that intrepid and experienced frontiersman.
The story has been too often told to bear repetition. Its great
importance arises from the fact that, starting as he did from
Virginia, and under the auspices of Virginia, his conquest has been
claimed as belonging exclusively "to the Nation of Virginia," as
Thomas Jefferson characterized that great commonwealth.
Roosevelt, in his " Winning of the West," says : " It is idle to
talk of that conquest as being purely a Virginia affair. It was con-
quered by Clark, a Virginian, with some scant help from Virginia,
but it was retained only owing to the power of the United States,
and the patriotism of such northern statesmen as Jay, Adams and
Franklin, the negotiators of the final treaty. Had Virginia alone
been in interest, Great Britain would not have even paid her claims
the compliment of listening to them. Virginia's share in the
history of the Nation, has ever been gallant and leading; but the
Revolutionary war was emphatically fought by Americans for
America; no part could have been won without the help of the
30 CONSTITUTIONAL HISTORY OF ILLINOIS.
whole, and every victory was thus a victory for all, in which all
alike can take pride."
The fate of Clark was melancholy, and like that of General
Arthur St. Clair, closed in poverty and gloom. He was ultimately
made a brigadier-general in the Virginia militia, and to the
harassed settlers in Kentucky, his mere name was a tower of
Alone and with the very slenderest means, he had conquered and
held a vast and beautiful region, which, but for him, would have
formed part of a foreign and hostile empire; he had clothed and paid
his soldiers with the spoils of his enemies; he had spent his own
fortune as carelessly as he had risked his life, and the only reward
that he was destined for many years to receive, was the sword
voted him by the Legislature.
Clark felt that he was entitled to some substantial reward rather
than an empty bauble for his services, and the tradition is that when
the Virginia commissioners offered Clark the sword, the grim old
fighter, smarting under the sense of his wrongs, threw it indignantly
from him, telling the envoys that he demanded from Virginia his
just rights and promised reward of his services, not an empty com-
pliment. The inhabitants of Illinois paid to his shade the post-
humous honor of naming a county after him, and the city of
Chicago an important street, over which uncounted thousands daily
and hourly pass and repass, who never knew of his existence, and
never heard of his exploits.
" The country beyond the Alleghanies was first won and settled
by the backwoodsmen themselves, acting under their own leaders,
obeying their own desires and following their own methods. They
were a marked and peculiar people. The good and evil traits in
their character were such as naturally belonged to a strong, harsh
and homely race, which, with all its shortcomings, was nevertheless
bringing a tremenduous work to a triumphant conclusion. The
backwoodsmen were, above all things, characteristically American;
and it is fitting that the two greatest and most typical of all
Americans, should have been respectively a sharer and an outcome of
their work. Washington himself passed the most important years of
his youth heading the westward movement of his people; clad in
the traditional dress of the backwoodsman, in tasseled hunting
shirt and fringed leggings, he led them to battle against the French
and Indians, and helped to clear the way for the American advance.
ILLINOIS AND VIRGINIA. Si
The only other man who, in the American roll of honor, stands by
the side of Washington, was born when the distinctive work of
the pioneers had ended; and yet he was bone of their bone and
flesh of their flesh; for from the loins of this gaunt frontier folk
sprang mighty Abraham Lincoln." The claims of Virginia to the
Northwestern Territory have, first and last, been the subject of
very great discussion, and were, at the time when she made her
deed of cession to the United States. She claimed in the first
place, all of the sovereign powers of a Nation, and laid great stress
upon her conquest of the territory by Clark, which was followed
by many public acts of the Colonial Government, asserting and
exercising dominion over the same.
THE NATION OF VIRGINIA.
Thomas Jefferson entertained a most exalted opinion of the
power of the State of Virginia, and sometimes spoke of that great
Commonwealth as the Nation of Virginia. As an example, in
1799, the question was extensively discussed whether the Supreme
Court of the United States possessed a general common law juris-
diction, and in a letter addressed to Edmund Randolph on the 18th
of August, of that year, among other things said: "Before the
Revolution, the Nation of Virginia had, by the organs they then
thought proper to constitute, established a system of laws, which
they divided into three denominations, of:
I. Common Law.
II. Chancery; or if you please into two only: 1. Common
law. 2. Chancery.
When by the Declaration of Independence they chose to abolish
their former organs of declaring their will, the acts of will already
formally and constitutionally declared, remained untouched. For
the Nation was not dissolved, was not annihilated; its will, therefore,
remained in full vigor; and on establishing the new organs,
first of a convention and afterward a more complicated Legislature,
the old acts of National will continued in force, until the Nation
should, by its new organs, declare its will changed.
The common law, therefore, which was not in force when we
landed here, nor till we had formed ourselves into a Nation and had
manifested by the organs we constituted that the common law was
to be our law, because the Nation continued in being, and because,
though it changed the organs for the future declarations of its will,
32 CONSTITUTIONAL JiisToRY or ILLINOIS.
yet it did not change its former declarations that the common law
was Us law. Apply these principles to the present case. Before
the Revolution there existed no such Nation as the United States;
they then first associated as a Nation, but for special purposes only.
They had all their laws to make as Virginia had on her first
establishment as a Nation. But the; did not, as Virginia had done,
proceed to adopt a whole system of laws ready made to their hand.
That Virginia did, as the settlers passed beyond the Alleghanies,
exercise acts of sovereignty over the regions which were, from
time to time, reported to the authorities as existing, is not denied,
for we find that the county of Orange was created in 173i, Augusta
in 1738, and Botetourt in 1769, in which act it is naively stated
that it is " bounded west by the utmost limits of Virginia."
Other counties erected before the Revolution, extended to the
Ohio, and embraced Kentucky.
Chief Justice Chase, in reviewing the controversy which arose
in regard to Virginia's claim to the whole Northwestern Territory
and of the various other claims to western lands by eastern States
among other things says : "Of these various claims, that of the United
States seems to have been the most natural and just. The charter
of Virginia had been vacated by a judicial proceeding; the company
to whom it was granted had been dissolved, the grant itself had
been resumed by the Crown, and large tracts of the country
included in its original limits, had been patented to various individ-
uals and associations without remonstrance on the part of the
colony of Virginia."
The expenses incurred and the efforts made by Virginia in the
reduction of the British posts and in the defense and protection of
the frontier, created a just claim upon the treasury of the Union,
but could not, of themselves, confer a valid title to the western
lands. The western boundary of Connecticut had been so clearly
defined in her agreement with New York that her claims to terri-
tory beyond that line could not be entitled to much consideration;
the pretensions of New York were liable to easy refutation upon
an appeal to western geography and an investigation into the real
extent of the territory of the six nations, and the claim of Massa-
chusetts rested upon a charter granted at a period when the terri-
tory now claimed under it was actually possessed and occupied by
France. In opposition to these various pretensions, the Congress,
as the common head of the United States, maintained its title to
ILLINOIS COUNTY. 33
the western lands upon the solid ground that a vacant territory
wrested from the common enemy by the united arms and at the
joint expense of all the States, ought of right to belong to Congress
in trust for the common use and benefit of the whole Union.
In 1776 the Virginia Legislature erected the county of Ken-
tucky, which included about everything southwest of the Ohio.
On the 4th of July, 1778, George Rogers Clark captured
Kaskaskia, which had been for nearly a hundred years the capital
of what was called the Illinois country, and in October, 1778, the
Legislature of Virginia declared, " All citizens of the Common-
wealth of Virginia, who are actually settlers there, or who shall
hereafter be settled on the west side of the Ohio, shall be included
in the District of Kentucky, which shall be called Illinois County."
A lieutenant commandant was appointed by Governor Patrick
Henry to govern the county, with full instructions for carrying
on the government.
The French settlements remained under Virginia jurisdiction
until March, 1784
ILLINOIS was once the frontier county of Virginia; and Ban-
croft says that " Virginia was the first State in the world com-
posed of separate boroughs, diffused over an extensive surface, where
representation was organized on the principle of universal suffrage."
As the State of Illinois has never, at any time, printed in any
statute or volume of session laws, either public or private, the act
of Virginia organizing what is now known as the State of Illinois
into the County of Illinois, we have here printed it in full, so that
it can be seen and read of all men :
THE COUNTY OF ILLINOIS.
AN ACT for establishing the County of Illinois, and for the more effectual protec-
tion and defense thereof.
WHEREAS, By a successful expedition carried on by the Virginia
militia, on the western side of the Ohio river, several of the British
34 CONSTITUTIONAL HISTORY OF ILLINOIS.
posts within the territory of this commonwealth, in the country
adjacent to the river Mississippi, have been reduced, and the inhab-
itants have acknowledged themselves citizens thereof, and taken
the oath of fidelity to the same; and the good faith and safety of
the commonwealth require that the said citizens should be supported
arid protected by speedy and effectual reinforcements, which will
be the best means of preventing the inroads and depredations of
the Indians upon the inhabitants to the westward of the Allegheny
Mountains; and whereas, from their remote situation, it may at
this time be difficult, if not impracticable, to govern them by the
present laws of this commonwealth, until proper information, by
intercourse with their fellow-citizens on the east side of the Ohio,
shall have familiarized them to the same, and it is therefore expe-
dient that some temporary form of government, adapted to their
circumstances, should in the meantime be established:
Be it enacted by the General Assembly, That all the citizens of
this commonwealth who are already settled, or shall hereafter
settle, on the western side of the Ohio aforesaid, shall be included
in a distinct county, which shall be called Illinois county; and that
the governor of this commonwealth, with the advice of the council,
may appoint a county lieutenant or commandant in chief in that
county, during pleasure, who shall appoint and commission so many
deputy commandants, militia officers and commissaries, as he shall
think proper in the different districts, during pleasure, all of whom,
before they enter into office, shall take the oath of fidelity to this
commonwealth and the oath of office, according to the form of their
own religion, which the inhabitants shall fully, and to all intents and
purposes enjoy, together with all their civil rights and property.
And all civil officers to which the said inhabitants have been
accustomed, necessary for the preservation of peace and the adminis-
tration of justice, shall be chosen by a majority of the citizens in
their respective districts, to be convened for that purpose by the
county lieutenant or commandant, or his deputy, and shall be com-
missioned by the said county lieutenant or commandant in chief,
and be paid for their services in the same manner as such expenses
have been heretofore borne, levied and paid in that county; which
said civil officers, after taking the oaths as before prescribed, shall
exercise their several jurisdictions, and conduct themselves agree-
able to the laws which the present settlers are now accustomed to.
And on any criminal prosecution, where the offender shall be
ILLINOIS COUNTY. 35
adjudged guilty, it shall and may be lawful for the county lieuten-
ant or commandant in chief to pardon his or her offense, except in
cases of murder or treason; and in such cases, he may respite exe-
cution from time to time until the sense of the governor in the
first instance, and of the General Assembly in the case of treason, is
obtained. But where any officers, directed to be appointed by this
act, are such as the inhabitants have been unused to, it shall and
may be lawful for the governor, with the advice of the council, to
draw a warrant or warrants on the treasury of this commonwealth
for the payment of the salaries of such officers, so as the sum or
sums drawn for do not exceed the sum of five hundred pounds,
anything herein to the contrary notwithstanding.
And for the protection and defense of the said county and its
Be it enacted, That it shall and may be* lawful for the gov-
ernor, with the advice of the council, forthwith to order, raise,
levy, either by voluntary enlistments or detachments from the
militia, five hundred men, with proper officers, to march immedi-
ately into the said county of Illinois, to garrison such forts or
stations already taken, or which it may be proper to take there or
elsewhere, for protecting the said county, and for keeping up our
communication with them, and also with the Spanish settlements, as
he, with the advice aforesaid, shall direct. And the said governor,
with the advice of the council, shall, from time to time, until
further provision shall be made for the same by the General
Assembly, continue to relieve the said volunteers, or militia, by
other enlistments or detachments, as hereinbefore directed, and to
issue warrants on the treasurer of this commonwealth for all
charges and expenses accruing thereon, which the said treasurer is
hereby required to pay accordingly.
And be it further enacted, That it shall and may be lawful for
the governor, with the advice of the council, to take such measures
as they shall judge most expedient, or the necessity of the case
requires, for supplying the said inhabitants, as well as our friendly
Indians in those parts, with goods and other necessaries, either by
opening a communication and trade with New Orleans, or otherwise,
and to appoint proper persons for managing and conducting the
same on behalf of this commonwealth.
Provided, That any of the said inhabitants may likewise carry
on such trade on their own accounts, notwithstanding.
00 CONSTITUTIONAL HISTORY OF ILLINOIS.
This act shall continue and be in force from and after the pass-
ing of the same, for and during the term of twelve months, and
from thence to the end of the next session of assembly, and no
longer. [Oct., 1778, 3d of Commonwealth. Chapter XXI, page
552, Vol. 9, Hening's Statutes at Large.
The name of Illinois county was changed by General St. Clair
and his council, when he became governor of the Northwestern
Territory, to that of St. Clair county, in March, 1790. Randolph
county was established in 1795, and these two counties were con
tinned by the Illinois Territorial Government, when Illinois was set
off from Indiana Territory, in 1809, and the boundaries of these
two counties were coterminous with that of the present State.
Edwards county was organized November *28, 1814, and its
original boundaries were as follows: "All that tract of country
within the following boundaries, to-wit: Beginning at the mouth
of Bon Pas Creek, on the Big Wabash, and running thence due
west to the meridian line (3d P. M.), which runs north from the
mouth of the Ohio river; thence with said meridian line, and due
north till it strikes the line of Upper Canada; thence with the line
of Upper Canada to the line that separates this territory from the
Indiana Territory, and thence with the said dividing line to the
Edwards county was cut off from Gallatin, and then White
county, in 1818, was taken off from the south part of Edwards.
In its original organization Edwards county embraced an
immense area of territory, extending practically from the Ohio
river (for its southern boundary, Gallatin county, was but relatively
a short distance from that river) to Upper Canada, including what
is now a portion of the State of Wisconsin.
The following counties, or parts of counties, in Illinois, have
been formed out of the territory included in Edwards county,
Wabash, Clay, Jasper, Coles, Macon, De Witt, Kankakee, Kendall,
De Kalb, Wayne, Richland, Effingham, Cumberland, Piatt, McLean,
Grundy, Du Page, Boone, Jefferson, Lawrence, Fayette, Edgar,
Champaign, Livingston, La Salle, McHenry, Marion, Crawford,
Shelby, Clark, Vermillion, Iroquois, Will, Kane, Lake and Cook.
It is difficult to imagine, in the great changes that are here shown
to have taken place in the civil divisions of the State, that when
Edwards county was organized neither Cook county nor the city of
Chicago had an existence; but that Cook county was embraced in
ILLINOIS COUNTY. 37
Edwards county, and its county seat, at Palmyra, at the falls of the
Big Wabash, a town which has long since ceased to exist.
When the first constitution of the State of Illinois was formed,
not a man was in the convention that framed it who lived North of
what is now the limits of Madison county. All of the records
of that convention have been lost.
The first governor of Illinois Territory, by proclamation, divided
the whole territory into three counties, and so it remained until the
14th of September, 1812, when Governor Edwards,! -by proclama-
tion, established the county of Madison, with the following boun-
daries, to- wit: "Beginning on the Mississippi, to run with the second
township above Cahokia, east until it strikes the dividing line
between the Illinois and Indiana territories; thence Illinois, with
the said dividing line to the line of Upper Canada ; thence with said
line to the Mississippi ; thence down the Mississippi to the place
This included about three-fourths of the State.
On the 31st of January, 1821, Pike county was established, by
an act of the Legislature, with the following boundaries: " Begin-
ning at the mouth of the Illinois river, and running thence up the
middle of said river to the forks of the same ; thence up the south
fork of said river until it strikes the State line of Indiana ; thence
north with said line to the north boundary line of this State; thence
west to the boundary line of the State, and thence with said line to
the place of beginning."
On the 28th of January, 1823, Fulton county was carved out of
the above territory, and on the 13th of January, 1825, the Legisla-
ture passed a law organizing and establishing the county of Peoria,
with the following boundaries, to-wit : Beginning where the line
between townships eleven and twelve north intersects the Illinois
river; thence west with said line to the range line between ranges
four and five east ; thence south with said line to the range line
between townships seven and eight; thence east to the line between
ranges five and six ; thence south to the middle of the main chan-
nel of the Illinois river; thence up along the middle of the main
channel of said river to the place of beginning.
On the 7th of December, 1825, the county was divided into three
election districts : One was called the Chicago precinct ; and Alex-
ander Wolcott, John Kinzie and John Baptiste Beaubien, all inhab-
itants of Chicago, were appointed judges of election for said precinct.
38 CONSTITUTIONAL HISTORY OF ILLINOIS.
In 1778 Chicago was in Virginia, and up to 1809 was in Indiana.
February 3, 1809, Indiana Territory was, by an act of Congress,
divided into two separate governments. President Madison ap-
pointed John Boyle, an associate justice of the Court of Appeals
of Kentucky, governor of the territory, but he declined, and Ninian
Edwards, chief justice of the same court, was appointed in his
stead. Nathaniel Pope was appointed secretary; Alexander Stuart,
Obadiah Jones and Jesse B. Thomas, judges; Benjamin II. Boyle,
Under the ordinance of 1787 and the act of Congress February
3, 1809, the Governor and Judges constituted the law-making power
of the territory, and as such they met for the first time at Kaskas-
kia, June 13, 1809, and their first act was to resolve that the laws of
Indiana Territory, in force prior to March 1, 1809, which applied
to the government of the territory, should remain in full force and
effect. The duration of the session was seven days.
In 1821 Chicago was in Pike county; in 1823 in Fulton county;
and in 1825 in Peoria county.
The act creating Cook county was passed and approved by the
General Assemby of Illinois, January 15, 1831, and by that same
act Chicago was made the county seat, and a ferry established at
the seat of justice. It was named after Daniel P. Cook, a son-in-
law of Governor l^inian Edwards, who was one of the first United
States Senators from this State. He was a member of Congress
from 1820 to 1827, and died during that year at the age of thirty-
In March, 1831, Cook county was organized. It embraced
within its boundaries all the territory which now constitutes the
counties of Lake, McHenry, Du Page and Will, and the only voting
place in the county at the first election was Chicago.
Constitutional Conventions in Illinois.
State of Illinois has held already four constitutional con-
-L ventions. The first was in 1818, under an act of Con-
gress passed April 18, 1818, termed an enabling act, and was for
CONVENTIONS IN ILLINOIS. 39
the purpose of forming a " State Constitution and a State Govern-
ment," republican in form, and in accordance with the principles
embodied in the ordinance of 1787.
The next was -held in 1847, the next in 1862, and the last one in
1869-70. Each of these last conventions was for the purpose of
" altering, revising and amending " the then existing Constitution.
THE CONSTITUTION OF 1818.
In 1818 the whole number of people in the State of Illinois was
about 45,000. Some two or three thousand of these were the
descendants of the old French settlers in the villages of Kaskas-
kia, Prairie Du Rocher, Prairie Du Pont, Cahokia, and Peoria.
Many of these had intermarried with the Indians and lived a roving
life, hunting and trapping. The American inhabitants were chiefly
from Kentucky, Virginia, Maryland and Pennsylvania. Some of
them had been officers and soldiers under George Rogers Clark, and
were good types of the pioneer element. They were farmers, me-
chanics and soldiers, and skilled in Indian warfare. The settled
part of the State did not, in 1818, extend much north of Edwards-
ville and Alton, while all the rest of the State was comparatively
an unbroken wilderness. The Black Hawk war did not occur until
The first Constitution was made up in its principal provisions
from the Constitutions of Kentucky, Ohio and Indiana; was adopted
by the delegates and never submitted to the people following, in
this regard, the precedent set by most of the slave States. Indeed,
the first Constitution, we believe, that ever was submitted to the
people for its adoption or rejection, was in the case of Maine,
It was very objectionable, in vesting the Legislature with the
appointing power of most of the principal officers of the State and
this we are told arose in this way : As originally framed this power
was committed to the executive, but as it was expected that Shad-
rach Bond would be elected governor, and that he would not
appoint a particular candidate to the office of state auditor, whom
the members of the convention favored, they changed the provis-
ion,* and inserted this clause in the schedule: "An auditor of
public accounts, an attorney-general, and such other officers as may
be necessary, may be appointed by the General Assembly." At
tirst the Legislature limited its exercise of this power to the appoint-
40 CONSTITUTIONAL HISTORY OF ILLINOIS.
ment of the above designated officers, the governor appointing the
state's attorneys, recorders and other officers and agents provided
for by law, but whenever it happened that the governor was not in
accord with the General Assembly, it would deprive him of his
patronage. Thus there was a continual liability to a change of the
appointing power, and the consequences were a constant pull-
ing, hauling and intriguing, which led to corrupt combinations and
the most disgraceful system of log rolling that could be imagined.
In the election of members to the convention the only questions
which were agitated and discussed before the people were the right
of constituents to instruct their representatives, and the introduction
of slavery. It is needless to say that the Constitution bears many
visible marks of the slave-holder, and the slave-holding interests
were unduly, and most unjustly protected, as will appear by arti-
cle YI of that instrument.
While professing to abolish slavery in the first section, by
declaring that " neither slavery nor involuntary servitude shall here-
after be introduced into this State, otherwise than for the punish-
ment of crimes, whereof the party shall have been duly convicted,
it proceeded to recognize the validity of contracts of indenture of
"persons" in several ways, especially the third section, which is in
these words :
" Sec. 3. Each and every person who has been bound to service
by contract or indenture by virtue of the laws of the 'Illinois Ter-
ritory, heretofore existing, and in conformity to the provi-
sions of the same, without fraud or collusion, shall be held to a
specific performance of their contracts or indentures; and such
negroes and rnulattoes as have been registered in conformity with
the aforesaid laws, shall serve out the time appointed by said laws.
Provided, however, That children hereafter born of such person,
negroes or mulattoes, shall become free the males at the age of
twenty-one years, the females at the age of eighteen years; each and
every child born of indentured parents shall be entered with the
clerk of the county in which they reside, by their owners, within
six months after the birth of said child."
Under and by virtue of those provisions the famous Black Laws
were passed, which disgraced the statute books of this State for
years, and which established a species of slavery about as effect-
ually as if it actually existed. Perhaps this is rather too strong
language, but these laws served to annoy greatly the negroes and
CONVENTIONS IN ILLINOIS. 41
mulattoes, and, strange to say, were continued in force until repealed
by the General Assembly, in 1867.
A still further explanation of this matter may not be amiss.
In 1807 the Indiana Legislature passed an act authorizing the
owners of negroes and mulattoes more than fifteen years of age to
bring them into the Territory, and to have them bound to service
by indenture for such time as the master and slave might agree
upon. If, within thirty days of the time he was brought into the
Territory, the slave would not consent to be indentured, then his
owner should have sixty days in which to remove him into any
State where slavery existed. The law also permitted any person to
bring slaves under fifteen years of age into the Territory, and to
hold them to service the males until the age of thirty-five, the
females until the age of thirty -two years. Male children, born in
the Territory, of a parent of color owing service by indenture, should
serve the master until the age of thirty years; female children
until the age of twenty-eight years. This act continued in force
until 1810. On the territorial statute book are also found very re-
pressive acts concerning servants. This act was continued in force
by the Illinois Legislature after the division of the Territory. In
1814 the same Legislature passed a law providing that slaves might,
with consent of their owners, hire themselves in the Territory for
a term not exceeding one year, and that such act should not in any
way affect the master's right of property in them in the State or
Territory where they belonged. The preamble of this act assigns
as reasons for its provisions that mills can not be erected, or other
needed improvements made, for want of laborers; and, particularly,
that the manufacture of salt, the supply of which should be abun-
dant and the price low, can not be carried on by means of white
men. Still further, an act passed in 1812 forbade the emigration
of free negroes to the Territory of Illinois under severe penalties;
and enjoined free negroes already there to register themselves and
their children in the office of the clerk of the county, also under
When one remembers that the Northwest was covered on two
sides by slave territory, from which it was separated onTv by the
Ohio and Mississippi rivers, he appreciates the facilities that such
enactments as the foregoing gave for evading the intent of the
sixth compact of the ordinance. Comment is not needed to show
that the ingenuity here displayed could have invented a system of
42 CONSTITUTIONAL HISTORY OP ILLINOIS*
enforced labor not at all inferior to that devised by some of the
Southern States under President Johnson's reconstructed scheme.
Moreover, these enactments explain certain provisions respecting
indentures in the first Constitutions of Ohio, Indiana and Illinois
that would otherwise be inexplicable.
When the resolution declaring the admission of Illinois to the
Union was on its passage through the House of Representatives, Mr.
Tallmadge, of Kew York, opposed its adoption on the ground that
it contravened the sixth article of the ordinance of 1787. He
felt himself constrained to come to the conclusion that the section
of the Constitution described above embraced a complete recogni-
tion of existing slavery, if not providing for its future introduction
and toleration. He contrasted the Illinois and the Indiana Consti-
tutions, to the disadvantage of the former. Thirty-four votes were
registered in the house against the resolution.
In the constitutional convention of 1818 there were but three
lawyers, Jesse B. Thomas, Ellas Kent Kane and A. F. Hubbard, so
far as we know.
Thomas was a delegate to Congress from Indiana Territory in
1809, at the time it was divided, and the principal agent in securing
the division. He was a lawyer of ability, of high standing, but an
advocate of slavery, and in the subsequent history of Illinois was a
leader of the pro-slavery party.
He was president of the convention which formed our State
Constitution at the time we were admitted into the Union, and was
elected the first United States Senator.
The leading member of the convention was probably Elias
Kent Kane, although we can not certainly tell, owing to the loss or
destruction of the records of the convention. He was born in the
State of New York and was bred to the profession of the law. He
removed, when a very young man, to Tennessee, and finally came to
Illinois and settled in Kaskaskia in 1815, when he was about twenty
years of age. His talents were both solid and brilliant, and he
soon became a leader; was appointed Secretary of State under the
new government in 1818, then became a member of the General
Assembly and finally United States Senator, and died a member of
that body in 1835.
Kane county on the Fox river was named after him.
A. F. Hubbard is chiefly distinguished for having attempted to
oust governor Coles from the office of governor while he was
CONVENTIONS IN ILLINOIS.
temporarily absent from the State by issuing a call for an extra
session of the General Assembly, and appointing one "W. L. D. Ewing
pay master-general of the State militia, etc., basing his claim for so
doing on a provision in the executive article of the Constitution,
which reads as follows:
"In case of impeachment, refusal to qualify, resignation or ab-
sence from the State, the lieutenant-governor shall exercise all the
power and authority appertaining to the office of governor, until
the time pointed out by the Constitution for the election of a gov-
ernor shall arrive; unless the General Assembly shall otherwise
provide by law for the election of a governor to fill such vacancy."
Under this provision Hubbard claimed that he was governor
de jure and de facto, having been elected lieutenant-governor at
the election in 1822, but on an opposition ticket. The State at that
time was considered overwhelmingly democratic, and Chief Justice
Phillips was the regular candidate of that party, with Adolphus F.
Hubbard lieutenant-governor. Edward Coles, a very popular
and strong anti-slavery man, was brought out against Phillips, and
was elected over him by a considerable majority, but both branches
of the Legislature were opposed to him, and every kind of a partisan
scheme was resorted to, to annoy him. Mobs were incited against
him, with threats of personal violence, suits were commenced
against him for bringing slaves into the territory and liberating
them, and he was heavily fined. At last, while temporarily absent
from the State, the bold attempt was made by Hubbard to usurp
his office. The issuing of a commission to Ewing was, at the time,
considered a very shrewd move, and it was thought for a time that
it would succeed, but Judge Lockwood was at that time on the
Supreme Bench, and he showed so clearly the ridiculous nature of
the attempt, that it came to naught. The legal history of this
affair may be found set forth at large in Breese's reports, and arose
on an application of Ewing to compel the Secretary of State, George
Forquer, by mandamus, to append his signature to this commission
which had been issued by Hubbard.
"We know but very little of the constitutional convention of 1818,
owing to the fact that all its records have been lost or destroyed,
but there is one thing that Governor Ford mentions in his history
of Illinois that is quite interesting, and that is that during the ses-
sion of the convention of 1818, the Reverend Mr. Wiley and his
congregation of Covenanters in Randolph county, sent in a petition
44 CONSTITUTIONAL HISTORY OF ILLINOIS.
asking the convention to declare in the Constitution that " Jesus
Christ was the head of the government, and that the Holy Scriptures
were the only rule of faith and practice." This petition was either
not noticed at all or was acted upon unfavorably, which so displeased
the Covenanters, that they henceforth looked upon the Constitu-
tion as "an heathen and unbaptized government," and refused to
vote, to work on the roads, serve on juries, hold any office or do
any act showing that they recognized the government.
This state of affairs continued until the great contest commenced
in 1824, whether Illinois should become a slave or a free State,
when they arose in their might and voted unanimously against
As early as 1818 the State was filled with a class of politicians
who were intent in controlling every office in sight, whether local,
State or National, and when the Constitution was formed the gov-
ernor was clothed with a large measure of the appointing power.
Shadrach Bond had been fixed upon by the common barrators for
the first governor, and the convention wished for some reason to
have Elijah C. Berry the first auditor of public accounts; but it
having been ascertained that Bond would not appoint him, the man-
agers, at the very last moment, and just before it was adopted in
the Convention, affixed this provision to the schedule: "An auditor
of public accounts, an attorney-general, and such other officers of
the State as may be necessary, may be appointed by the General
Assembly," as above stated.
Thus "accoutered," the Constitution was adopted and "they all
plunged in." By " they" we mean the whole army of hungry
politicians, who were waiting the day when they could obtain access
to the public crib and fatten on its stores. An inventory was taken,
and who were " officers of the State " and who were not, soon
became a matter of debate, and the question was asked by members
of the General Assembly : Were state's attorneys of the circuits
were canal commissioners, fund commissioners, commissioners of
the board of public works, bank directors, canal agents, etc. were
they State officers ? And the reply came back from the General
Assembly every time : Yes, they were State officers. And the
General Assembly absorbed them with great alacrity and relish.
Ford says : " Some times such agents were appointed by elec-
tion; then, again, the Legislature would pass a law enacting them
into office by name and surname. They contrived to strip the gov-
CONVENTIONS IN ILLINOIS. 45
ernor of all patronage not positively secured to him by the Consti-
tution such as the appointment of a secretary of stale and the till-
ing of vacancies during the recess of their sessions. At tirst the
Legislature contented itself with the power to elect an auditor and
attorney-general ; the governor, all the state's attorneys, the record-
ers of counties, all State officers and agents occasionally needed,
and many minor county officers. But in the administration of Gov-
ernor Duncan, he was finally stripped of all patronage, except the
appointment of notaries public and public administrators. Some-
times one Legislature, feeling pleased with the governor, would
give him some appointing power which their successors would take
away if they happened to quarrel with him.
This constant changing and shifting of powers from one co-
ordinate branch of the government to another, which rendered it
impossible for the people to foresee exactly for what purpose either
the governor or the Legislature were elected, was one of the worst
features of the government. It led to innumerable intrigues and
corruptions, and for a long time destroyed the harmony between
the executive and legislative departments.
And all this was caused by the convention of 1818 in the attempt
to get one man into an office of no very considerable importance.
At the time of the formation of the Constitution of 1818 the State
was divided into fourteen counties, namely: St. Clair, Randolph,
Madison, Gallatin, Johnson, Edwards, "White, Pope, Jackson,
Crawford, Bond, Union, Washington and Franklin.
St. Clair was represented by John Messenger and James
Randolph by George Fisher and Elias Kent Kane.
Madison by B. Stephenson, Joseph Borong and Abraham
Gallatin by Michael Jones, Leonard White and Adolphus
Johnson was represented by Hezekiah West and William
Edwards by Seth Gord and Levi Compton.
Pope by Samuel O'Melveny and Ferguson.
White by Willis Hargrave and Enoch Moore.
Jackson by Conrad Well and James Hall, Jr.
Crawford by Joseph Kitchell and Ed. K Cullom.
Bond by Thomas Kirkpatrick and Samuel G. Morse.
46 CONSTITUTIONAL HISTORY OF ILLINOIS.
Union by William Echols and John Whiteacre.
Washington by Andrew Bankson, and
Franklin by Isham Harrison and Thomas Roberts.
Jesse B. Thomas was president of the convention and William
C. Greenup was secretary.
The convention assembled at Kaskaskia on the first Monday of
August, 1818, in accordance with the fourth section of the
enabling act, and adjourned on the 26th of August.
The Founders of the Commonwealth.
" TN the birth of societies," says Montesquieu, "it is the chiefs
J- of the republics who form the institution, and in the sequel
it is the institution which forms the chiefs of the republics." And
he adds : " One of the causes of the prosperity of Rome was the
fact that its kings were all great men. We find nowhere else in
history an uninterrupted series of such statesmen and such military
" Historic truth ought to be no less sacred than religion. If the
precepts of faith raise our souls above the interests of this world, the
lessons of history, in their turn, inspire us with the love of the
beautiful and the just, and the hatred of whatever presents an
obstacle to the progress of humanity. These lessons, to be profit-
able, require certain conditions. It is necessary that the facts be
produced with a rigorous exactness, that the changes, political or
social, be analyzed philosophically, that the exacting interest of the
details of public men should not divert attention from the political
part they played, or cause us to forget their providential mission."
Illinois was fortunate in the beginning by having for her found-
ers a race of great men. Col. George Rogers Clark, the conqueror
of the Illinois country, takes rank next to Hannibal.
Governor Edwards, the first governor of the territory of Illinois
and the first senator of the State, was the friend of Madison and the
schoolmate of William Wirt. He was born in Maryland and was
brought up under the very best educational and social influences
OF THE COMMONWEALTH. 47
of his native State. He early removed to Kentucky, became chief
justice of that State, and occupied that position at the time that
Madison selected him as governor of the Illinois Territory.
At the time Illinois was admitted into the Union the affairs of
the State were wholly controlled by pro-slavery men, who seemed
bent upon making the State a slave State.
Governor Edwards himself, the foremost citizen of the State
and a man of commanding influence, first governor of the Illinois
Territory, afterward senator, was a slave-holder, and held slaves in the
territory, contrary to the ordinance of 1787 the great organic law of
the Northwest Territory and contrary to his oath of office, as will
be seen by the following notice, under his own hand and signature.
" NOTICE. I have for sale 22 slaves; among them are several of
both sexes, between the ages of 10 and 17 years. If not shortly
sold I shall wish to hire them in Missouri Territory. I have
also for sale a full-blooded stud horse, a very large English bull and
several young ones.
" Oct. 1, 1815. NINIAN EDWARDS."
Taken from the " Illinois Herald," published in Kaskaskia Oct.
Governor Edwards, though by birth a southern man, and
appointed from Kentucky as governor upon the organization of the
territory, was yet, as William H. Brown said, in favor of a free
Constitution for Illinois, and did, much to his credit, range him-
self on the side of the free soilers in the great struggle which took
place between the contending hosts in 1824.
The Secretary of State was Nathaniel Pope, a man of great
ability, refined in his manners and of scholarly tastes. He was
chosen territorial delegate to Congress in 1816, and it was by and
through his efforts that the northern boundary of the State was so
changed as to bring Chicago into Illinois instead of leaving it in
Judge Jesse B. Thomas was a delegate to Congress from Indiana
Territory at the time it was divided, in 1809, and the Illinois Ter-
ritory created. He removed to Kaskaskia, was elected the presi-
dent of the constitutional convention of 1818, and then senator,
with Governor Edwards as his colleague. He was a strong pro-
slavery man, and a leader of that party in the State, but, as we have
been told, regretted his course before he died. He died in Ohio.
He was born in Hagerstown, Maryland, and claimed to be a direct
48 CONSTITUTIONAL HISTORY OF ILLINOIS.
descendant of Lord Baltimore. He is said to have been the author
of the Missouri Compromise Bill of 1820.
Judge Griswold was from New England strict as a Puritan
and conscientious as a saint. Governor Reynolds says of him: " He
was a correct, honest man, a good lawyer, paid his debts and sung
"William H. Brown was the friend and companion of Lockwood
and Coles, and one of the most upright men that we ever knew.
He died at the "Bible Hotel," at Amsterdam, Holland, in 1867, of
small-pox, while on a foreign journey, some twenty-three years ago,
at an advanced age.
John Reynolds, familiarly known as the " Old Ranger " is one
of the most picturesque characters that ever lived in this State.
He was born of Irish parentage in Pennsylvania, February 26,
1788; removed to Illinois in 1800 lived on a farm for a time; then
went to school at Knoxviile, Tennessee was ever foremost in
horse and foot-racing shooting matches studied law, and when
he hung out his shingle at Cahokia in 1814, announced his advent
in the " Illinois Herald," published at Kaskaskia, as follows :
" To the poor people of Illinois and Missouri Territory. To
the above cla^s of mankind whose pecuniary circumstance will not
admit of feeing a lawyer, I tender my professional services as a
lawyer in all courts I may practice in, without fee or reward.
He was great on the stump, in church, school-house, grocery,
or the open air. He became judge of the Supreme Court, and
governor of the State.
Among the reminiscences of the times is an advertisement in
the "Missouri Gazette" of May 14, 1816, as follows:
" FIFTY DOLLARS REWARD
Will be given to any person, who will deliver to me, in Caho-
kia, a negro boy named Moses, who ran away from me in Cahokia
about two months since. He is about sixteen years old. well made,
and did belong to Messrs. McKnight & Brady, in St. Louis,
where he has been since frequently, and is supposed to be harbored
there or thereabout. He had on a hunting shirt when he left me,
May 14, 1816.
Governor Ford, in speaking of Reynolds, says that he had
passed his life on the frontier among a frontier people; had learned all
CONVENTIONS OF ILLINOIS. 49
the by-words, catch- words, old and odd sayings and figures of speech
invented by vulgar ingenuity and common among a backwoods
people; to these he had added a copious supply of his own, and
had diligently compounded them all into a language peculiar to
himself, which he used on all occasions, public and private. He
was a man of remarkably good sense and shrewdness for the sphere
in which he was destined to move, and possessed a fertile imagina-
tion, a ready eloquence, and a continual mirthfnlness and pleasantry
when mingling with the people. He had a kind heart, and was
ready to do a favor, and never harbored resentment against any
Shadrach Bond was another great man who has left his mark
on the times, and, although a pro-slavery man, was in his day and
generation highly regarded and esteemed.
Pie was elected the first governor of the State by an almost
unanimous vote. He came to the Territory from Maryland in 179i,
and settled in the American Bottom, in what is now Monroe county.
He was of commanding presence, noble mien, and of great dignity
of character. He kept horses and hounds, and lived like one of
the landed gentlemen of the eighteenth century. He was a mem-
ber of the Territorial Legislature of Ohio and Indiana, a captain in
the war of 1812, and was the first delegate to Congress from Illi-
nois Territory, taking his seat December 3, 1812.
Pierre Menard was elected lieutenant-governor on the same
ticket with Bond, and he also was a most remarkable man. He was
of French extraction, born at St. Antoine, thirty-five miles from
Montreal, October 7, 1766, and came to Kaskaskia from Yincennes
in 1790, and engaged in merchandising. He was a great favorite
with the Indians, became active in public affairs, was elected a
member of the Territorial Legislature of Indiana, afterward removed
to Kaskaskia and there became president of the council of the Ter-
ritorial General Assembly of Illinois, and was the most distinguished
of all the French emigrants that ever came to the West.
He was a good financier and understood its principles well. His
command of the English language was somewhat limited, and once
when the proposition came up in the Senate to memorialize the
Treasurer of the United States to secure the _bills of the bank of
Edwardsville in payment of lands, believing it to be objectionable,
he refused to put the question. Upon its being demonstrated to him
that it was his duty to put the question, he said : " Gentlemen, if
50 CONSTITUTIONAL HISTORY OF ILLINOIS.
I inns' I mus'. You who are in favor of dis resolution will say
aye; but I bet you one tousand dollar Congress never make him
land-office money; you are opposed will say no."
Thomas Reynolds, a younger brother of Governor John Rey-
nolds, was an active politician in this State until 1828, when he
removed to Missouri, of which commonwealth he was elected gov-
ernor in 1840.
He possessed many of the original traits and picturesque char-
acteristics of his brother. He was not only a very popular man
among his associates, but he was a long-headed, shrewd and push-
ing man, and never allowed slight obstacles to daunt his courage or
thwart his purposes.
George Flower, one of the old pioneers of whom we shall speak
hereafter, writing from his personal knowledge, says : " Our influ-
ential men, and all who held office, from the governor to the con-
stable, were from slave States. Every sheriff and every clerk of
the county were pro-slavery men; every lawyer and all our judges
were from slave States and pro-slavery. I know of but one excep-
tion in the whole bar that attended our courts, and that was Samuel
Governor Coles, and his Immediate Friends and Contem-
/^ OYERNOR COLES, Judge Lockwood and Judge Griswold
VJToccupy very conspicuous positions in our history; especially
Governor Coles; and if ever any man deserves immortality it is he.
He drew around him the very best men of his time, such men
as Lockwood, Birkbeck, Flower, Daniel P. Cook and William H.
Brown, and threw his heart and soul into the fight against human
slavery, and it was his efforts probably more than any one man's
that succeeded in making Illinois forever a free State.
His life was pure and above reproach. He endured insults,
reproaches, buffetings and persecutions without number, but survived
them all and died peacefully at his home in Philadelphia in 1838.
His career demands something more than a passing notice.
GOVERNOR COLES AND HIS IMMEDIATE FRIENDS. 51
He was born in Albemarle county, Virginia, December 15, 1786.
His father, John Coles, had been a colonel in the Revolutionary
War. He was fitted for college by private tutors, was sent to
Hampden Sidney in 1805, then to William and Mary College at
Williamsburg, but did not graduate therefrom owing to a very severe
accident by which his leg was fractured in so severe a manner as to
impair his health and prevent him from performing all labor. His
limb was with great trouble preserved and his health finally restored.
Among his classmates were Lieutenant-General Scott, President
John Tyler, William S. Archer, United States Senator from Vir-
ginia, and Mr. Justice Baldwin of the Supreme Court of the United
States. The Coles family was a very prominent one and allied
with some of the most distinguished politicians in the State, and the
family mansion was the seat of all the old-fashioned Virginia Com-
monwealth. It was visited by Patrick Henry, Jefferson, Madison,
Monroe, the Randolphs, Tazwell, Wirt, and many others of the
leading men of that time. At the age of twenty-three he became
the private secretary of President Madison and so remained for
the period of six years. His correspondence with Thomas Jef-
ferson upon the subject of slavery is historic and fixed his opinion
upon that matter forever. He was the owner of a plantation and
many slaves and these he resolved to liberate. He visited the West
in 1815 to select a place for his future abode and where he might
take his slaves and liberate them. He selected Illinois, but before he
could effect that object he was sent by President Madison to Russia
to settle a difficulty which had arisen between, the Czar and our
American Consul. The trouble grew out of the conduct of the
Russian Minister at Washington who had misrepresented matters
there to the Czar, but when he became aware of the facts offered
to make proper amends, even to sending the offending minister to
Mr. Coles, after having finished the business which he was sent
abroad to transact, returned by way of Berlin and Paris, where lie
was presented to Louis XVIII by Mr. Gallatin and there he met
In 1819, he removed to Edwardsville in this State, after having
liberated his slaves on their voyage down the Ohio river. After
his arrival at Edwardsville, for the better protection of the freed-
men, and on the advice of the Hon. Daniel P. Cook, one of the
best lawyers of the State, he gave separate papers of manumission
52 CONSTITUTIONAL HISTORY OF ILLINOIS.
to all his former slaves. At this time neither Governor Coles nor
Mr. Cook knew anything about a law of the State that had been
previously passed, but which was not promulgated till several
months afterward. -This law prohibited any person from bringing
into the State any negroes for the purpose of emancipation unless
he should give bonds in the penalty of one thousand dollars, that
the negro would not become a countv charge: and that if the eman-
o / o j
cipator neglected to give this bond, he should forfeit and pay the
sum of two hundred dollars for every negro emancipated. Gov-
ernor Coles had, as we have said, emancipated all his slaves long
before they reached Illinois, but had given them certificates of
manumission after his arrival at Edwardsville. This afforded a
fine opportunity for the pro-slavery party to harass and annoy
him on the ground of a technical violation of the law. Conse-
quently proceedings were instituted against him in the name of the
County of Madison and the writ was returnable at the March
term of the Circuit Court at Edwardsville, 1824. John Reynolds
was the presiding judge and after a considerable delay, every
special plea having been ignored, the case came to trial before a
jury on the plea of nil debet and resulted in their returning a ver-
dict against him for $2,000. It appeared on the trial that three of
the negroes had died before the commencement of the suit, but the
judge held that that made no difference; that a grave offense had
been committed and he must suffer the consequences. The late
Elihu Washburne in his very interesting and valuable biography of
Governor Coles, says, among other things : " From a bill of excep-
tions taken during the trial and spread upon the records of the
court it appears that the defendant, Coles, offered to give in evidence
and prove to the jury that three of the negroes of the plaintiff had
departed this life before the commencement of the suit; but the
astute judge would not permit the testimony to be given, thus prac-
tically deciding that it was necessary to hold the county harmless
from the support of dead men. The defendant then offered to
prove by Joseph Conway, the clerk of the County Commissioners'
Court, that the defendant had never been notified or required to
give bond, but the court would not permit such evidence to be
given. The defendant then further offered to prove by Daniel P.
Cook, the attorney under whose advice he acted, the conversation
he had with him before the date of manumission, and that he, Cook
advised the giving of such certificate in order to protect the
GOVERNOR COLES AND HIS IMMEDIATE FRIENDS. 53
negroes and to 'enable them to live themselves;' and also to
prove by said Cook all the circumstances and conversation between
said witness and defendant, which induced and led to the execu-
tion of said certificate, all of which was rejected."
The certificate which Mr. Coles gave, was in the following
words and figures, to-wit : " Whereas my father, the late John
Coles, of Albemarle, in the State of Virginia, did, in his last will
and testament, give and bequeath to me certain negro slaves, among
others, Robert Crawford and his sister, Polly Crawford ; the said
Robert Crawford being a mulatto about five feet seven inches high
and now about twenty-seven years of age; and the said Polly being
a mulatto woman about five feet one inch high, and now about six-
teen or seventeen years of age :
" And whereas I do not believe that man can have a right of prop-
erty in his fellowman, but on the contrary, that all mankind are
endowed by nature with equal rights, I do, therefore, by these
presents, restore to the said Robert and his sister Polly, that inalien-
able liberty of which they have been deprived. And I do hereby
renounce for myself and my heirs forever, all claim of every
description whatever to them and their services, and I do hereby
emancipate and make free the said Robert Crawford and his sister
Polly Crawford. In testimony whereof the said Cole set his hand
and seal on the 19th day of July, 1819."
This act of emancipation, executed by Governor Coles and spread
upon the records of the court, stands out to his immortal honor and
makes more conspicuous the infamy of his persecutors.
The motion for a new trial, which had been made in the case at
the September term, 1824, was not decided at that term, and the
case went over to the March term, 1835. At this term of the
court, Judge Samuel McRoberts presided. He was a hard-hearted
and most unmerciful judge. The motion for anew trial in the case
which he found undecided, was promptly overruled.
Between the term of the court in September, 1824, and the
March term, 1825, the Legislature (in January, 1825,) passed an act
releasing all penalties incurred under the act of 1819 (including
those sued for), upon which Coles was prosecuted. The law required
as conditions precedent to the release of the penalties, the execution
of a bond that the negroes should not become a charge upon any
county in the State, and that all the costs of the suit and damages
should be paid. To enable the defendant to take advantage of this
54 CONSTITUTIONAL HISTORY OF ILLINOIS.
act, at the June term it was moved to set aside the verdict and judg-
ment to enable him to plead puis darien continuance.
McRoberts proved equal to this last phase of the case; he
overruled the motion for a new trial and rejected' the plea, holding
that the Legislature could not make a law to bar the recovery of
the penalty in the case. The judge was not able to prevent the
defendant from taking an appeal to the Supreme Court of the
State. This appeal was taken and heard at the June term of the
court at Vandalia, 1826.
The judgment of the Circuit Court was reversed and the cause
remanded with directions to receive the defendant's plea. Chief
Justice Wilson gave an able and elaborate opinion. The case is
fully reported in Breese's Reports, page 115, and is entitled, Coles,
plaintiff in error, versus The County of Madison, defendant in
The case was argued in the Supreme Court by Henry
Starr for Coles, and Turney & Reynolds for the county of Madi-
son. Henry Starr was at this time residing at Edwardsville and
one of the best lawyers in the State. He was a strong personal
and political friend of Coles and took a deep interest in this case.
After being several years at Edwardsville, he returned to Cincin-
nati, where he attained great eminence in his profession.
This persecution did not end here but a number of libel suits
were instituted against him for his just criticisms on the scandalous
conduct of the judge who tried the case against him for freeing his
slaves, but he finally triumphed over all his enemies and his course
and conduct were fully vindicated and his character has grown
brighter and brighter with each revolving year. The tribute which
Mr. Washburne has paid him in his " Sketch of Edward Coles " is
worthy of all praise. He died at his residence in Philadelphia, July
7, 1868. We regard Mr. Coles like John the Forerunner, in his
course and career, and we have no doubt he had more or less influence
upon the life and destiny of the immortal Lincoln, who was thor-
oughly acquainted with his persecutions, his sacrifices and his mar-
tyrdom in endeavoring to make Illinois a free State.
Judge Gillespie, in a letter to Mr. Washburne, dated Edwards-
ville, February 28, 1881, speaks of Governor Coles as follows: " I
knew the governor well. He lived in this place while lie was
a citizen of Illinois. He was a remarkable man, and devoted him-
self to the propagation of the sentiments of freedom. He was the
GOVERNOR COLES AND HIS IMMEDIATE FRIENDS. OO
most unrelenting foe to slavery I ever knew. His time, money,
everything belonging to' him, was expended in the cause so dear to
ln's heart. He brought his slaves here from Virginia and liberated
them, gave to each head of a family a tract of land, within four
miles of this place, where they settled and lived for many years.
He was unmarried while he lived in Illinois, and when in Edwards-
ville boarded in the family of James Mason. His character was
without spot or blemish in all the walks of life."
Judge Caton, who was for many years a circuit judge and one
of the Supreme judges of the State, a man who is revered by every
one who knows him as one of the earliest settlers of Chicago, in a
great argument made by him in 1881, in the United States Circuit
Court, at Chicago, against the repudiation of certain bonds issued
by the city of Ottawa, said: " In closing this reference to the past
of our State, allow me to say that Illinois has produced three great
men, whose conspicuous services will render their names immortal,
aiid which should be commemorated by enduring monuments, and
to whom we owe a debt of gratitude that can never be paid.
The first was Edward Coles, who was governor of the State in
1824, and who saved the State from the black curse of African
slavery, then and forever. The second was Thomas Ford, who was
governor in 1842, and who saved the State from the scarcely less
blighting curse of repudiation; and the third was Abraham Lincoln,
who saved the Union from dismemberment and the Nation from
destruction. Not alone, either of them ; for all were assisted and
supported by other great men whose names should be scarcely less
honored; but they were the great leaders in these great labors, whose
talents and whose integrity led the people to these great accomplish-
ments. In all time to come posterity should bow its head in grati-
tude whenever either of these names should be spoken."
His public career in the State of Illinois was practically closed
in 1826, when, on the 5th day of December of that year, he sent his
valedictory message to the Legislature, and soon after retired from
office. This message was mainly devoted to the affairs of the State.
But in it he made a most touching allusion to the deaths of Thomas
Jefferson and John Adams, which occurred simultaneously, on the
4th of July preceding, " thus sanctioning by their deaths a day ren-
dered glorious by the most important event of their lives and in the
history of their country." To Mr. Jefferson, to whom he was most
tenderly attached by ties of sympathy and friendship, he paid a
56 CONSTITUTIONAL HISTORY OF ILLINOIS.
most eloquent tribute, describing him as a "sage and a philanthro-
pist, as a statesman and a patriot, the author of the Declaration of
Independence, the great political reformer to whose strong, bold
and original genius we are, in a great degree, indebted for our civil
and religious freedom, and for our correct understanding of the
rights of men and of nations.
In closing, he earnestly appealed to the General Assembly to
repeal the " Black Code," which related to the servitude of the
blacks and "indentured servants;" in order, as he said, to "make
the laws in relation to that unfortunate class of our fellow-beings, the
descendants of Africa, less repugnant to our political institutions
and local situation;" to do which "it is requisite that provision
should be made, not only for loosening the fetters of servitude, but
for the security and protection of free persons of color. It is also
indispensable that the law should be radically altered, and, so far
from considering every colored person a slave unless he can procure
written evidence of his freedom in Illinois, every man should be
presumed free until the contrary is made to appear."
It will scarcely be believed that these laws, to which Governor
Coles refers, and known, as we have said, as the " Black Code,"
actually remained on the statute books of this State for more than
a quarter of a century afterward, and were not repealed until the
On the 28th of November, 1833, he was married at Philadelphia
by Bishop De Lancey, to Miss Sally Logan Roberts, a daughter of
Hugh Roberts, a descendant of Hugh Roberts, of Peullyn, Wales,
who came to this country with William Penn in 1682. Possessed
of an ample fortune, his private life seems to have brought him
every charm, and surrounded him with every happiness. Of a
very happy, bright and cheerful disposition, he entered sympathet-
ically into the pleasures of all, and promoted in every possible way
the happiness of all. He was an affectionate husband, a devoted
father and a kind friend.
Governor Coles was a very little less than six feet in height, of
a slender build, and strongly marked features. His eyes were
brilliant, and his countenance particularly when lighted up by a
smile was one of rare beauty. He died in Philadelphia at the
ripe old age of eighty-two, July 7, 1868, and lies buried in that
beautiful resting-place of the dead near the city known as the
GOVERNOR COLES AND HIS IMMEDIATE FRIENDS. 57
COL. WILLIAM S. HAMILTON.
During Governor Coles' administration was the visit of Lafay-
ette to Illinois in 1825. In the month of December previous, the
Legislature of the State had extended to the General a most cordial
and pressing invitation to visit Illinois, and as Lafayette came up
the Mississippi river from New Orleans, Governor Coles, who had
extended the invitation to him on behalf of the State, couched in
the most respectful and cordial language, sent forward his aid-de-
camps to meet him at St. Louis and accompany him to the State,
with a letter in his own hand to this effect:
EDWAKDSVILLE, April 25, 1825.
DEAR Sra: This will be handed to you by my friend and aid-
de-camps, Col. William Schuyler Hamilton, whom I take pleasure in
introducing to you as the son of your old and particular friend,
Gen. Alexander Hamilton. As it is not known when you will arrive
at St. Louis or what will be your intended route from thence, Col.
Hamilton is posted there for the purpose of waiting on you as soon
as you shall arrive and ascertaining from you and making known to
me by what route you propose to return to the eastward and when
and where it will be most agreeable for you to afford me the hap-
piness of seeing you and welcoming you to Illinois.
I am, with the greatest respect and esteem, your devoted friend,
This Col. William Schuyler Hamilton is worth remembering,
and is deserving of more than a passing tribute owing to more
reasons than one. He was the son of the immortal Alexander
Hamilton, and his real name was William Stephen Hamilton and
not William Schuyler, as Governor Coles calls him. He lived in
the State of Illinois during the administration of Governor Coles,
was appointed by him his aid-de-camps, with the rank of colonel, and
performed all his duties with great intelligence, dignity and decorum.
He was born in New York, August 4, 1797, and was admitted to
the West Point Academy in 1814 and resigned in 1817. He left
his home in New York and settled at an early day in Sangamon
County, Illinois. He was United States deputy surveyor of the
public lands, and in that capacity surveyed the township in which
Springfield now stands. In 1824 he was elected a member of the
House of Representatives from Sangamon County. In 1827 he
removed to the "Fever River Lead Mines" and commenced mining
58 CONSTITUTIONAL HISTORY OF ILLINOIS.
for lead ore at a point soon known as " Hamilton's Diggings," now
Wiota, in Lafayette county, "Wisconsin. Hon. Elihu Washburne,
in referring to him, says: "I knew Colonel Hamilton well from
1841 to 1849, when he emigrated to California. He occupied a
prominent position in Southwestern Wisconsin and was a well known
whig politician. He was a member of the House of Representa-
tives in the Territorial Legislature of Wisconsin in 1842-3. He
died in Sacramento, California, October 9, 1850. For nineteen
years neither stone nor slab marked the spot where reposed his
ashes. When the careless grave digger threw his shovelfuls of
earth on his coffin, little could he have thought he was covering the
remains of a son of Alexander Hamilton, in my judgment the great-
est of all American statesmen. Colonel Hamilton was brave, gen-
erous, hospitable and humane, and unusually quick in perception
and decided in action." In 1879 Cyrus Woodman, Esq., of Cam-
bridge, Massachusetts, who was long a resident of Mineral Point,
Wisconsin, and a devoted friend of Colonel Hamilton, purchased a
lot in the cemetery of Sacramento, and marked the grave with
granite head and foot-stones. On the polished surface of the head-
stone he placed the following inscription:
COLONEL WM. S. HAMILTON,
GENERAL ALEXANDER HAMILTON,
WAS BORN IN NEW YORK,
AUGUST 4, 1797.
HE WAS AN EARLY SETTLER AND PROMINENT CITIZEN
COMING TO CALIFORNIA IN 1849.
HE DIED HERE OCTOBER 9, 1850.
IN SIZE AND FEATURE, IN TALENT AND CHARACTER,
HE MUCH RESEMBLED HIS ILLUSTRIOUS
A FRIEND ERECTS THIS STONE.
JUDGE SAMUEL D. LOCEWOOD.
Judge Samuel D. Lockwood was a man whose life and public
services are worthy of commemoration, and he will take rank next
to Governor Coles. He came to the State in 1818, and died in 1874.
He was elected state's attorney in 1821 was appointed Secretary
of State by Governor Coles in 1822; receiver of public moneys by
CJOLES AND HIS IMMEDIATE FRIENDS.
President Monroe in 1823; in 1824 was elected one of the judges
of the Supreme Court and remained in that position till the adop-
tion of the Constitution in 1848, when he was appointed trustee of
the Illinois Central Railroad Company.
He was born in Poundridge, Westchester Co., N. Y., Aug. 2,
1789, and died at Batavia, April 23, 1874, in the eighty-fifth year of
his age. The impress that he left upon the State and the age in
which he lived, we trust, will not soon be forgotten.
The part that he took in public affairs in the founding and estab-
lishing charitable and public institutions has identified .his name
with everything that is noble and good. "When the State was in
danger of becoming a slave State, he threw into the contest his soul,
his conscience, his money and estate, and in connection with Coles,
William H. Brown, and scores of others, fought the good fight and
won the victory.
He was a great lawyer, judge and jurist, and possessed a char-
acter worthy of imitation. He was the author of the Criminal
Code of the State in 1825, and considering the time and occasion,
and his want of all exterior aids in the shape of books, it was and
is a masterpiece. It is a curious fact that the Chicago anarchists
were tried under a provision of that Code entitled "Accesso-
ries to Crime," as follows : " An accessory, is he or she who stands
by and aids, abets or assists; or who, not being present aid ing, abet-
ting or assisting, hath advised and encouraged the perpetration of
" He or she who thus aids, abets or assists, advises or encourages,
shall be deemed and considered as principal, and punished accord-
Of Judge Lockwood, Dr. Edward Beecher, who was president
of Illinois College for fourteen years, says: " I can not enter into
any details of the life of Judge Lockwood, nor of his legal services to
the community. But I can say that during an acquaintance of over
twenty years, of which fourteen associated me with him as a trustee
of Illinois College, I have seen in him incorruptible integrity and
wisdom as a counsellor in all things, with an unwavering devotion to
sound principles and the public good in every position he held.
"His life, in all its relations, public and social, was spotless and I
think he had the entire confidence and warm affection of the whole
community in which he lived.
60 CONSTITUTIONAL HISTORY OF ILLINOIS.
" His services to the cause of liberty in the early history of the
State deserves a warm recognition."
Dr. T. M. Post, of St. Louis, himself renowned as a minister of
the Gospel, as a scholar and a statesman, says : " There was in his
character a rare blending of elements a modesty, gentleness and
delicacy well nigh feminine, and great general kindness, combined
with intrepid firmness of principle, a large practical wisdom, distin-
guished judicial ability and integrity, and a personal purity and
honor as stainless as a star. He was a most beneficent power in
founding and shaping the early history and civilization of Illinois."
There was heroism in those men who stayed the tide of incoming
barbarism and opened the springs of a high 'civilization who kept
out slavery with its. three-fold curse on master, servant and soil, and
established freedom with its three-fold blessing on mind, body and
estate ; who planted the seed, and cherished to a vigorous growth
our educational, benevolent and Christian institutions, adorning the
prairie with schoolhouses, asylums and churches. The real history
of Illinois must be found in the lives of her eminent men.
Next to Governor Coles, Lockwood and Mr. Peck, the man who
did the most in arousing and forming public opinion to the dan-
gers of making Illinois a sla've State was Morris Birkbeck of
Edwards county. He was an Englishman by birth, and was born in
"Wanborough, England, in 1763. He was highly educated, possessed
a fine library and was renowned for his scholarship arid high classi-
cal attainments. He had met Governor Coles on his visit to Eng-
land a number of years before his advent to Illinois, and, probably
through his influence, had emigrated to America and taken up his
abode in Edwards county, where he founded a town and named it
after his native town in England, "Wanborough. The settlement
was soon known as the "English Settlement" and is a romance
in itself equal in interest to that of a fairy tale. He was a man of
great experience and observation which he had improved by foreign
travel; and he had prior to his coming to this country written a
book of travels entitled " Notes of a Journey through France,"
which had attracted the attention of Thomas Jefferson and was
found in his library at Monticello.
He is the author also of the well known works entitled " Letters
from Illinois " and % ' Notes on a Journey in America." His views
upon the subject of slavery may be gathered from a letter dated
GOVERNOR COLES AND HIS IMMEDIATE FRIENDS. 61
July 28, 1818. written to a friend in France, in which he says: " In
passing from theory to practice 1 have experienced no diminution of
my love for freedom; but 1 hate tyranny more cordially and I want
language to express the loathing I feel for personal slavery; prac-
ticed by freemen it is most detestable. It is the leprosy of the
United States, a foul blotch which more or less contaminates the
entire system in public and in private, from the president's chair to
the cabin of the hunter."
When the great controversy was raging over the question
whether Illinois should be slave or free, Mr. Birkbeck wrote a series
of letters over the nom de plume of Jonathan Freeman, which
were widely read and greatly admired. They were plainly written
but were full of facts and figures and captivated all who read them.
He was most bitterly assaulted by the pro-slavery party and
denounced as a " foreign emissary," an '-exile," a quaker and an
infidel of the worst type, to exterminate whom would be doing God's
will. He deserves, for the part he took in making Illinois a free
State, immortal honor, and his memory should be embalmed in brass
and marble. He was drowned while crossing a small stream called
Fox river, June 4, 1825. His body was taken two days afterward
to New Harmony, Indiana, and buried with every mark of respect
and affection. Thus perished Morris Birkbeck, one of the ablest
and most celebrated men of his time in Illinois, whose influence
wielded in the cause of freedom and humanity, should always be
gratefully remembered. Associated with Mr. Birkbeck in his work
of establishing the English colony at Wanborough was George
Flower, who was also a great man and deserves particular mention.
He was an Englishman by birth, and was born in Hertford, the
county town of Hertfordshire, twenty miles northeast of London.
He had known Birkbeck in his youth, had traveled with him over
France soon after the fall of Napoleon, and from France southward
to the shores of the Mediterranean, skirting the Pyrenees and
returning thence by a more easterly route to Paris.
Birkbeck dedicated his small but very interesting volume enti-
tled "Notes on a Journey through France," etc., to Mr. Flower in
To Mr. George Iflower, of Morden, near Hertford.
DEAR SIB: Yon were my agreeable and intelligent fellow-
traveler, and I offer you this little volume as the result of our
joint observations. Your faithful friend,
Wanborough, Nov. 13, 1814. M. BIRKBECK.
62 CONSTITUTIONAL HISTORY OF ILLINOIS.
Flower first sailed from Liverpool for America in the ship
Robert Burns in April, 1816, and was fifty days in crossing the
Atlantic. He traveled on horseback across the Alleghanies to the
far West; met Gen. Jackson at Nashville, Tennessee, and return-
ing East visited Jefferson at his Poplar Forest estate, to whom he had
letters'of introduction and with whom he stayed, on Jefferson's
invitation, for several months, passing the winter with him. There
is nothing which has ever been written, which contains such a
charming picture as his life-like sketch of Mr. Jefferson in the
home of his family and in his domestic privacy, as he saw him in
Mr. Jefferson, it appears, was a great believer in land and his large
possessions at Monticello did not seem to satisfy him and he pur-
chased an estate in Bedford county, which he called Poplar Forest,
and which was but a short distance east of Lynchburg. Mr. Flower
was a man of rare intelligence, of fine literary tastes, and extensive
reading, with a great knowledge of men and things in Europe, and
Mr. Jefferson became very much interested in him.
Mr. Flower in his account of his visit to Jefferson, says: ""We
entered the State of Virginia at Abington. 1 found Mr. Jefferson
at his Poplar Forest estate, in the western part of the State of
Virginia. His house was built after the fashion of a French chateau.
Octagon rooms, floors of polished oak, lofty ceilings, large mirrors,
betokened his French taste, acquired by his long residence in France.
Mr. Jefferson's figure was rather majestic; tall, over six feet, thin
and rather high-shouldered; manners simple, kind and courteous.
His dress in color and form was quaint and old-fashioned, plain and
neat, a dark pepper and salt coat, cut in the old quaker fashion,
with a single row of large metal buttons, knee-breeches, gray
worsted stockings, shoes fastened by large metal buckles such was
the appearance of Jefferson when I first made his acquaintance in
1816. His two granddaughters Misses Randolph well educated
and accomplished ladies, were staying with him at the time." He
was delighted with the conversations of Jefferson, who gave him
the minor history of events before only known to him generally in
published records and publications of the times. While here he
became acquainted with the Coles family, Isaac Coles, the brother
of Governor Coles, being Jefferson's private secretary. His sister,
Miss Coles, had just been married to Hon. Andrew Stevenson, who
was afterward minister to Great Britain, and was the first American,
GOVEKNOK COLES AND HIS IMMEDIATE FRIENDS. 60
we believe, who WPS ever voted the freedom of the city of London.
He was present at the inauguration of James Monroe as President
of the United States. He afterward met Edward Coles at the
house of Madison.
A short time after this he joined the colony of Morris Birkbeck
and went West with him and located at the English colony in
Edwards county. The story of his life is as thrilling as a romance
and is embodied in what is known as the " History of the English
Settlement in Edwards County," published at the expense of Levi
Z. Leiter, and constitutes the first of a series of the Chicago His-
torical publications. He and his wife died on the same day early
in January, 1862, at the house of their daughter, Mrs. Agniell, at
Grayville, White county, Illinois. Dr. Barry of the Chicago His-
torical Society, in a just tribute to his great and exalted worth, says:
"Born in Hertfordshire, England, in affluent circumstances, after
gaining some distinction in his native land by continental travel for
the benefit of British husbandry, he came to America in 1817
(about thirty years of age) as the associate of Morris Birkbeck in
founding the English colony at Albion, Edwards county, in Illi-
It was no mere sordid impulse that moved either of these noble-
hearted men in their scheme of colonization. Republicans from deep-
seated sentiment and conviction, the great American Republic drew
them hither as to a congenial home, and here they jointly estab-
lished a thrifty and successful colony, transplanting on our virgin
prairies the arts and improvements of the old mother country.
The large wealth possessed by Mr. Flower gave him a command-
ing, a responsible, and we may add, a laborious position in the new
colony. His spacious mansion of rare extent and finish in a new
settlement was the scene of frank and elegant hospitality. Strangers
of distinction sought it from afar. Improved husbandry, with the
importation of the finest fleeces of England and Spain, followed
the guiding hand of the master mind. The calm and philosophic
wisdom of Mr. Flower, united witli a rare benevolence, has left
bright traces upon our western history.
In the eventful strife which accompanied the daring attempt in
1823, to legalize African slavery in Illinois, no one enlisted with a
truer heroism than he. We of the present day, and amidst the
dire commotions of civil war, can but poorly comprehend the
ferocity and the gloomy portents of that struggle. So nearly
64 CONSTITUTIONAL HISTORY OF ILLINOIS.
balanced were the contending parties of the State, that the vote of
the English colony, ever true to the instincts of freedom, turned
the scale, a handful of sturdy Britons being the forlorn hope to
stay the triumph of wrong and oppression, whose success might
have sealed forever, the doom of republican and constitutional
liberty in America. The failure of that nefarious plot against our
young and noble State, led to an outburst of persecution against
free negroes and their humane protectors, transcending even the
invidious hostility of our so-called Black Laws, and constitutional
Mr. Flower was one of that class of men whose fine insight, large
views and calm force, raised him above all claimants to popular
favor. In his early maturity, he numbered among his friends and
correspondents such personages as our American Jefferson, Lafay-
ette, and the Comte de Lasteyrie, of France, Madame O'Connor
(the daughter of Condorcet), Ireland, and Cobbett, of England.
By these, and such as these, his superior tone of mind and character
was held in true esteem. In the depths of our yet unfurrowed
prairies, and amidst the struggle and hardship of a new settlement,
a mind and heart like his might fail of a just appreciation by his
contemporaries. This sad realization he doubtless felt. But now
that he has passed from the scenes of his voluntary exile, let it not
be said that a true and gifted manhood was here and we knew it not.
There are those now, and to come, who will keep green his
memory, and take pleasure in recovering the traces of a noble mind
that lived and thought and acted only for human good.
That his teachings and example bore fruit is evidenced by the
fact that the records of the Indiana volunteers show that Richard
Flower was among the first to enlist in the First Indiana Cavalry,
at Mount Vernon, Indiana, on the breaking out of the rebellion, and
he fell in the battle of Fredericktown, Missouri, on the 18th of
Daniel P. Cook, who was at this period a young and rising
statesman, did not figure in the great contest for freedom in Illinois
as conspicuously as many others, but he acted as the legal adviser of
Governor Coles on many occasions and his name and fame are closely
identified with this great movement.
In 1827 Hon. Daniel P. Cook, member of Congress from this
State, obtained a grant of land in aid of the Illinois and Michigan
Canal, and thus obtained the title of " Father of the Illinois and
GOVERNOR COLES AND HIS IMMEDIATE FRIENDS. 65
Michigan Canal." At that time this project was wholly a Southern
Illinois enterprise, and Mr. Cook was a representative from that
portion of the State.
He was a member of Congress commencing with the second
session of 1819, and served with great distinction in that body eight
years. He was elected at the early age of twenty-five, served eight
years and died when only thirty-three years old. He was a most
remarkable man, possessed of great foresight, eloquence and sagac-
ity and was the compeer of Clay, Calhoun, Wirt, Stevenson and
McDuffie. He was chairman of the important committee of ways
and means in the House, during his last term of service and bid
fair to become one of the foremost men in the Nation. He was
early impressed with the idea of improving the water ways of our
State and of building a canal from the Mississippi river to Chicago.
In 1824, the Legislature of the State passed a law giving to a
private company the practical, if not exclusive, control of the Illi-
nois river and the power of making a canal. So averse was he to
this, that he left his'seat in Congress, came home to Illinois, pro-
cured the repeal of the charter and then procured the land grant
which resulted in building the canal. The project of connecting
the waters of the Mississippi with those of Lake Michigan was agi-
tated as early as 1814. In 1818, Governor Bond pressed it upon
the attention of the first Legislature, then sitting at Kaskaskia, and
Governor Coles, in 1822, did the same.
In 1821, the Legislature appropriated $10,000 for the survey
of the route of the Illinois and Michigan Canal. In 1823, canal
commissioners were appointed and a tour of inspection was made
under Col. J. Post and R. Paul, of Missouri. The work was com-
menced in 1836, and completed in 1845.
Daniel P. Cook was one of the most enterprising and far-seeing
statesmen of his time. The State of Illinois and the county of Cook
owe him a debt of gratitude which can never be repaid. He
deserves at least a monument to his memory and it should be
erected at no distant day.
The Great Convention Struggle of 1823-4 to Make Illinois
a Slave State.
SIX years after the Constitution of 1818 had been adopted and
before even the provisions had become known to the scattered
population of the State a struggle commenced for supremacy
between the pro-slavery inhabitants and those who were in favor
of forever keeping the State free such as has never been wit-
nessed in this country, except perhaps in regard to Kansas, nearly
forty years afterward. It was a gigantic conspiracy which was
entered into by the leading office-holders and aspirants for office
in the State backed by parties in Kentucky, Tennessee and Missouri.
Missouri had just been admitted into the Union under and by
virtue of what is known as the Missouri Compromise, and the slave-
holding population and their sympathizers resolved to keep com-
pany with their neighbors.
The times were hard. The farmer could find no market for his
abundant crops. Manufactures languished, improvements were at a
standstill, and the mechanic was without work. The country was
cursed by a fluctuating and irredeemable paper currency, which had
driven all real money out of circulation.
The flow of immigration to the State had in a great measure
ceased, but a great emigration passed through the State to Missouri.
Great numbers of well-to-do emigrants from the slave States, tak-
ing with them their slaves, were then leaving their homes to find
new ones west of the Mississippi. When passing through Illinois to
their destination, with their well equipped emigrant wagons, drawn
by splendid horses, with their retinue of slaves, and with all the
lordly airs of that class of slave-holders, they avowed that their
only reason for not settling in Illinois, was that they could not hold
their slaves. This fact had a very great influence, particularly in
that part of the State through which the emigration passed, and
people denounced the unwise provision of the Constitution pro-
hibiting slavery and thus preventing a great influx of population to
add wealth to the State.
ATTEMPT TO MAKE ILLINOIS A SLAVE STATE. 67
During the years 1823-4 occurred the great controversy over
the question " Shall a convention be called to form a new State Con-
stitution" it being well understood that if the convention was
called, Illinois would become a slave State, if it was not, it would
remain a free State.
The proposition was beaten by a considerable majority after one
of the most exciting campaigns ever held within our borders.
The success which had attended the admission of Missouri into
the Union, under and by virtue of the famous compromise bill,
encouraged the pro-slavery party in this State to believe that if a
convention were called to revise and amend the Constitution, they
could make Illinois a slave State, and every effort was put forth to
accomplish that object. The Constitution had, it must be recol-
lected, been in operation only about four years, and the only thing
that was ever particularly complained of was the restrictions on the
appointing power of the governor and the Council of Revision.
But this made no difference; the fiat went forth that Illinois must
be made a slave State in order to keep pace with Missouri, and the
William H. Brown, in recounting his reminiscences of the
period, says: "Among those who supported the convention, as a
.general thing, were the rank and file of the politicians of the State.
Of these must be excepted a few such men as Daniel P. Cook, and
Governor Edwards, even, who, according to my recollection, was
absent from the State and took no part in the controversy. These
politicians were dangerous opponents, because, long engaged in the
struggles for power and office, they were practiced leaders and
familiar with all the means and appliances for success with the
people. With them were the men of wrecked fortunes and loose
principles, as also the young, aspiring and ambitious, misled by the
loud boasting and extravagant calculations of the party, supposing
that the great majority was upon that side. The French population
also, to secure more perfectly their supposed rights to the people of
color then held by them in bondage, were the natural allies of the
conventionists and desirous of their success. To these must be
added, with very few exception?, the poor whites from the slave
States, the most vociferous and malignant of all. Their poverty
and shiftlessness precluded the possibility of their becoming slave-
holders if the Constitution should be changed. Their toil and zeal
could only be accounted for upon the supposition that they desired
a class of humanity among us more debased and ignorant than them-
The Constitution of Illinois made it the duty of the General
Assembly whenever two-thirds of its members should think it
necessary to alter or amend the Constitution, to recommend to the
electors at the next election of members to the General Assembly,
to vote for or against a convention for such purpose, and if it shall
appear that a majority of all the citizens voted for a convention,
the General Assernbty shall at their next session call one to be held
in time and manner specified under the provision. The agitation for
a convention commenced and was favored by every pro-slavery
elector in the State.
The first skirmish occurred in the General Assembly of 1820-21,
when Lockwood was elected to the office of attorney-general.
The second was the election of Edward Coles governor, in
August, 1822, as the second governor of the State, and was one of
the most wonderful dramas ever enacted, whether State or National.
The convention party never dreamed of any other result than
that in their own favor, and nominated Chief Justice Joseph
Phillips. Some opposition having, however, developed against him,
a faction nominated Judge Thomas C. Brown, who they thought
would draw largely from Coles, but in this they were mistaken, and
when the votes were counted it was found that Coles had received
2,810 votes; Phillips, 2,760; Brown, 2,543, and Moore, a fourth
This gave Coles a plurality of fifty-one votes over Phillips, and
he was elected. The first thing that Coles did was to appoint Sam-
uel D. Lockwood Secretary of State, and the party squared for
On the convening of the General Assembly it was found that in
order to hold ia convention to revise the Constitution, under the pro-
visions of the Constitution it was necessary to have a two-thirds
vote, and they were lacking one vote in the House. At first it was
attempted to have the question decided by joint ballot, but as it was
found that the Constitution required that the act calling the con-
vention must be decided by a two- thirds majority in each House,
that plan was abandoned and scoundrelism was resorted to.
A man by the name of Hanson had been elected to the House
of Representatives from Pike county. His seat was contested by
a man by the name of Shaw. Finding Hanson favorable to calling a
ATTEMPT TO MAKE ILLINOIS A SLAVE STATE. 69
convention, Shaw was ousted of his seat and went home. This
happened very early in the session, and but little was thought
about it. It was after a time, however, discovered that Hanson
would not vote in favor of a convention and he was unseated and
Shaw recalled. This gave them the requisite two-thirds majority
and their joy knew no bounds. They indulged in the most shame-
ful orgies and an impromptu jollification was gotten up not only
to celebrate their hard-earned victory but to insult _and degrade
Governor Ford in describing this affair says: "The night after
this resolution passed, the convention party assembled to triumph
in a great carousal. They formed themselves into a noisy, dis-
orderly and tumultuous procession, headed by Judge Phillips,
Judge Smith, Judge Thomas Reynolds, late governor of Missouri,
and Lieutenant-Governor Kinuey, followed by the majority of the
Legislature and the hangers-on and rabble about the seat of govern-
ment; and they marched with the blowing of tin horns and the
beating of drums and tin pans to the residence of Governor Coles
and to the boarding houses of their principal opponents toward
whom they manifested their contempt And displeasure by a con-
fused medley of groans, waitings and lamentations. Their object
was to intimidate and crush all opposition at once."
Governor John Reynolds characterized the proceeding as " a
wild and indecorous proceeding by torch light and liquor," and in
his history "My Own Times," says that, "this proceeding in the
General Assembly looked revolutionary and was condemned by all
honest and reflecting men. This outrage was a death blow to the
The people soon took fire and the contest commenced. Each
anti-convention member of the General Assembly contributed fifty
dollars to a common fund. Governor Coles gave his whole four
years salary, amounting to $4,000, to the work. Lockwood, in
order to earn money to aid in the work, resigned the office of Secre-
tary of State with its meagre fees and accepted the office of receiver
of public moneys, and devoted all his surplus income to the cause.
The enthusiasm kindled and men, women and children became
aroused and interested, and the excitement spread through the
State. Papers were bought and established, appeals were made,
broadsides written, and in less than six months after the adjourn-
ment of the General Assembly the heavens glowed as if illuminated
70 CONSTITUTIONAL HISTORY OF ILLINOIS.
by prairie fires. The convention men formed secret clubs with grips
and signals, and adopted as a pass word "convention or die," but it
was of no use. There was a God in Israel. The anti-convention
party became thoroughly united, and were led by men that knew
no fear, and whose convictions were so strong that they would have
gone to the scaffold or the stake singing hosannas to God. They
belonged to that class of martyrs that have worshiped God and died
for the " Old Cause," since the Redeemer was crucified on the cross
and since Sidney poured out his soul for the liberty of his fellow-
The leaders of the convention party were politicians and
schemers. They were influenced to a great extent by their ambi-
tion for office and were envious and distrustful, often angry, often
overbearing and in want of respect for the opinions of others.
Gov. Reynolds, an active convention man himself, says that "the
convention question gave rise to two years of the most furious and
boisterous excitement and contest that ever visited Illinois. Men,
women and children entered the arena of party warfare and strife,
and the families and neighborhoods were so divided and furious and
bitter against one another that it seemed as if a regular civil war
might result. The leaders of the convention were Elias Kent
Kane, McLean, Judge Phillips, Judge McRoberts, A. P. Field,
Governor Bond, A. Beaird. Robinson, Smith, Kinney, West, R. M.
Young and others. The opposition was headed by Governor .Coles,
Rev. J. M. Peck, Judge Lockwood, Daniel P. Cook, William H.
Brown, Judge Pope, Governor Edwards, Morris Birkbeck. George
Flower, David Blackwell, Hooper Warren, Henry Eddy, George
Forquer, George Churchill and others. Ostensibly the most influ-
ential and energetic public men were on the side of the convention,
but the opposition was better organized and trained in the cause.
The facts and arguments were the strongest on the merits of the
subject in opposition to slavery, which had its effect in such long
discussions before the election. The question, as it was familiarly
called at the time, united the various denominations of religion
which had never before acted together. The opposition to the
convention labored with more enthusiasm and devotedness to the
cause than the other side and organized better and sooner. The
opposition succeeded by 1,800 votes majority, and thus ended the
most important and the most exciting election that was ever wit-
nessed in the State. The full vote stood 4,972 for the convention.
ATTEMPT TO MAKE ILLINOIS A SLAVE STATE. 71
and 6,400 against the convention, showing that each party brought
out its full strength. The victory thus won undoubtedly saved
Indiana (because the same thing was agitated there) from becoming
a slave State, and set bounds to that great blighting and withering
curse to every clime and country it ever reached. " The noise of
the conflict has long since died away, and the actors in it all rest
from their labors, but a grateful people should always remember
that freedom in Illinois was secured, not by the ordinance of 1787
alone, but by the persistent energy, the noble faith and heroic
enthusiasm of our honored fathers of the present century."
Those who were in favor of calling a convention to make
Illinois a slave State, numbered among its champions, the ablest and
most influential men of the time, among whom were ex-Governor
Bond, and six gentlemen who afterward became United States
senators : Jesse B. Thomas, John McLean, Elias Kent Kane, John
M. Robinson, Samuel McRoberts and Richard M. Young; there were
also, Chief Justice Phillips of the Supreme Court, who was
characterized at the time as a demagogue of the first water, William
Kinney and Zadoc Casey, subsequently lieutenant-governors of the
State, Colonel Alexander P. Field, Joseph A. Beaird, Gen. "Willis
Hargrave, Emanuel J. West, Lieutenant-Governor Hubbard, John
Reynolds, a judge of the Supreme Court, Thomas Reynolds, brother
of John Reynolds, afterward governor of Missouri, and many others.
On the anti-convention side were a class of men, not so dis-
tinguished, but they were the most conscientious, intensely earnest
and determined men that ever lived. The martyrs and holy men
of old never surpassed them in zeal and Christian fortitude. Men,
we have been told, prayed for success and the blessings of Almighty
Godmpon their efforts and the results of their labors who never
prayed before, and Christian women sang, wept and prayed, cheered
and encouraged them to persevere to the end.
Governor Coles took the lead and worked night and day organ-
izing the opposition everywhere and wielding his facile and power-
ful pen with great effect. He was aided and assisted by Judge
Lockwood, William H. Brown, Rev. John M. Peck, Morris Birk-
beck, Robert Flower, and hosts of others whose names deserve
Among the most effective and untiring workers was Rev. John
M. Peck of St. Clair county. He was originally from Connecticut,
possessed of a strong and comprehensive mind, well educated and
72 CONSTITUTIONAL HISTORY OF ILLINOIS.
with an energy and perseverance rarely surpassed. His headquar-
ters were St. Clair county. This he organized in the most thorough
manner and then extended his system, which was something like
the organization of the minute men in the times of the Revolution,
to fourteen other counties. He appealed to God and the con-
sciences of men with an eloquence akin to that of St. Paul. Uniting
the work of establishing Sunday schools, temperance societies and
the distribution of the Bible, he preached a crusade against slavery
wherever he went, equal to those who roused the masses to rescue
the Holy Sepulchre from the hands of the infidels during the mid-
dle ages. He was a master of pathos and painted the trials, suffer-
ings and sorrows of the poor and downcast creatures who were
held in bondage in colors such as moved all to tears. To the hum-
ble and needy farmers he held above them a crown of glory like
that of Bunyan's diadem over the toiler with the muck-rake if they
did their duty, and his appeals to their wives to aid and assist them
in the good work were irresistible. Bunyan's allegory was at his
tongue's end and he never failed to point out the trials of Christian
as those of their own, and that the sight of the Delectable mountains
and Paradise itself were theirs if they would go to the polls and
vote against calling a convention to make Illinois a slave State.
John Bunyan had much to do with dedicating to freedom our great
and glorious Commonwealth. God be praised.
Mr. Hinsdale, in his " Old Northwest," in reviewing this period
and this great struggle says : " From the first the propagandists
fought a losing battle. When the end was finally reached, the vote
stood for a convention, 4,950; against a convention, 6,822, being a
majority of 1,872 in a total vote of 11,772. In view of this large
majority, the subsequent political history of Illinois for thirty years
is very remarkable. The State passed almost at once into the hands
of a powerful and violent pro-slavery party and thus remained until
the repeal of the Missouri Compromise brought about a new com-
bination of political forces. But the attempt to enthrone slavery
in the citadel of the State Constitution was not renewed."
The Development of Infant Industries, or how Banking- can
be Carried on by Politicians.
history of banking by politicians and the administration of
-L State banks by boards of directors, composed of politicians, is
one of the most instructive lessons ever taught a free people. The
Jate Thomas Ford has given a most graphic account of the period of
speculation in Illinois, which set in soon after the adoption of the
Constitution of 1818, and which is worth recounting. " Until 1817,"
says he, "everything of a foreign growth or manufacture had been
brought from New Orleans on keel boats, towed with ropes or
pushed with poles by the hardy race of boatmen of that day, up
the current of the Mississippi, or else wagoned across the moun-
tains from Philadelphia, and from thence floated down the Ohio,
to its mouth, in keel boats, and from there shoved, pushed and
towed up the Mississippi, as from New Orleans. Upon the con,
elusion of the war of 1812, the people from the old States began to
come and settle in the country. They brought some money and
property with them and introduced some changes in the customs
and modes of living. Before the war, such a thing as money was
scarcely ever seen in the country. The skins of the deer and raccoon
supplying the place of a circulating medium."
The money which was now brought in and which had before
been paid by the United States to the rnilitia during the war, turned
the heads of all the people, and gave them new ideas and aspira-
tions, so that by 1819, the whole country was in a rage for specu-
lating in lands and town lots. The States of Ohio and Kentucky, a
'little before, had each incorporated a batch of about forty independ-
ent banks. The Illinois Territory had incorporated two at home,
one at Edwardsville, and the other at Shawneetown; and the Terri-
tory of Missouri added two more at St. Louis.
These banks made money very plenty; emigrants brought it to
the State in great abundance. The owners of it had to use it in
some way, and as it could not be used in legitimate commerce in a
State where commerce did not exist, the most of it was used to
74 CONSTITUTIONAL HISTORY OF ILLINOIS.
build houses in towns which the limited business of the country
did not require, and to purchase land which the labor of the country
was not sufficient to cultivate. This was "developing the infant
resources of a new country." The United States Government was
then selling land at two dollars per acre; eighty dollars on the
quarter section to be paid down on the purchase with a credit of
five years for the resident. For nearly every sum of eighty dol-
lars there was in the country, a quarter section of land was pur-
chased; for in those days there were no specie circulars to restrain
unwarrantable speculations; but, on the contrary, the notes of most
of the numerous banks in existence were good in the public and
land offices. The amount of land thus purchased was increased by
the general expectation that the rapid settlement of the country
would enable the speculator to sell it for a high price before the
expiration of the credit. This great abundance of money, also,
about this time made a vast increase in the amount of merchandise
brought into the State. "When money is plenty, every man's credit
is good. The people dealt with the stores on credit, and drew
upon a certain fortune in prospect for payment. Every one was
expecting to make it out of the future immigrant.
The speculator was to sell him houses and lands, and the farmer
was to sell him everything he wanted to begin with and to live
upon until he could supply himself. Towns were laid out all over
the country and lots were purchased by every one on credit; the
town maker received no money for his lots, but he received notes
of hand which he considered to be as good as cash, and he lived
and embarked in other ventures as if they had been cash in truth.
In this mode, by the year 1820, nearly the whole people were
irrevocably involved in debt. The banks in Ohio and Kentucky
broke one after another, leaving the people of those States covered
with indebtedness and without the means of extrication. The
banks at home and in St. Louis ceased business.
The great tide of immigrants from abroad, which had been
looked for, failed to come. Real estate was unsalable; the lands
purchased of the United States were unpaid for and likely to be
forfeited. Bank notes had driven out specie, and when these notes
became worthless, there was no money of any description left in
To remedy those evils, the Legislature of 1821 created a State
bank. It was founded without money and wholly on the credit of
DEVELOPMENT OF INFANT INDUSTRIES. 75
the State. It was authorized to issue one, two, three, five, ten and
twenty dollar notes, the likeness of bank bills, bearing two per cent,
annual interest, and payable by the State in ten years. A principal
bank was established at Vandaliaand four or five branches in other
places; the Legislature elected all the directors and officers, a large
number of whom were members of the Legislature, and all of them
The bank was directed by law to lend the bills to the people, to
the amount of one hundred dollars on personal security, and upon
the security of mortgages upon land for a greater sum.
These bills were to be received in payment of all State and
county taxes, and for all costs and fees and salaries of public officers;
and if a creditor refused to indorse on his execution his willingness
to receive them in payment of his debt, the debtor could replevy
or stay its collection for three years by giving personal security.
The bill creating this new system of banking, was forced
through the House by sheer brute force. John McLean, of Shaw-
neetown, who was speaker of the House at the time, was insulted
and bullied to such a degree and in such an outrageous manner, that
he resigned the speakership, and opposed the bill with all his might,
but it was of no avail.
The governor and judges, acting as a council of revision, objected
to it as being unconstitutional and inexpedient, but it passed through
both Houses by the constitutional majorities. The Supreme Court
of the United States afterward decided that all the bills of such
banks which were payable at a future day, were bills of credit and
prohibited by the Constitution.
In 1821 the new bank went into operation. Every man who
could get an indorser borrowed his hundred dollars. The directors
were, as before stated, all politicians, and were either then candi-
dates for office or expected to be. Lending to everybody and
refusing none was the surest road to popularity.
Three hundred thousand dollars of the new money was soon
lent without much attention to security or care for eventual pay-
ment. It first fell twenty-live cents, then fifty and then seventy
cents below par. As the bills of the Ohio and Kentucky banks had
driven all other money out of the State, so this new issue effectually
kept it out. Such a total absence was there of the silver coins, that
it became utterly impossible, in the course of trade, to make small
change. The people, from necessity, were compelled to cut the
76 CONSTITUTIONAL HISTORY OF ILLINOIS.
new bills into two pieces so as to make two halves of a dollar. Fol
about four years there was no other kind of money, but this uncur-
rent State bank paper. In the meantime, very few persons
pretended to pay their debts to the bank. More than half of those
who borrowed considered what they had gotten from it as so much
clear gain, and never intended to pay it from the first.
By the year 1824 it became impossible to carry on the State
government with such money as the bills of this bank. The State
revenue varied from twenty-five to thirty thousand dollars per
annum which was raised almost exclusively by a tax on lands, then
owned by non-residents, in the military tract lying northwest of the
The resident land tax in other parts of the State was paid into
the county treasuries. The annual expenditures of the State gov-
ernment were about equal 'to the annual revenues; and as the taxes
were collected in the bills of the State bank, the Legislature, to
carry on the government, were compelled to provide for their own
pay, that of all the public officers, and the expenses of the govern-
ment, by taking and giving enough of the depreciated bills to equal
in value the sums required to be paid. So that each member
instead of receiving three dollars per day, received nine dollars per
day. The salaries of the governor and judges, and all other ex-
penses were paid in the same way. So that if $30,000 were required
to pay the expenses of the government fora year, under this system
it took $90,000 to do it. And thus by the financial aid of an insolv-
ent bank, the Legislature managed to treble the public- expenses,
without increasing the revenues or amount of service to the State.
In fact, this State lost two-thirds of its revenues and expended
three times the amount necessary to carry on the government.
In the course of ten years, it must have lost more than $150,000 by
receiving a depreciated currency, $150,000 more by paying it out,
and $100,000 of the loans, which were never repaid by the borrow-
ers and which the State had to make good, by receiving the bills of
the bank for taxes, by funding some at six per cent, interest, and
paying a part in cash in the year 1831.
Repeal of the Black Laws of Illinois.
struggles which the early settlers of Illinois underwent in
endeavoring to establish a free government, developed heroes
who braved hardships, dangers and outrages such as have seldom
fallen to the lot of mortals in this new world. They deserve to
have their names handed down to posterity, embalmed by the
most tender recollections.
"Long 1 ago was Gracchus slain,
Brutus perished long ago;
But the living roots remain,
Whence the shoots of freedom grow."
Among those who made their appearance on the stage of action
soon after the pioneers had retired to rest and who entered with
heart and soul into the work of liberating the slaves and of amelio-
rating the condition of the negroes and mulattoes in Illinois was
Zebina Eastman. He located at an early day in Chicago, estab-
lished "The Western Citizen," and in connection with Hooper
Warren, James H. Collins, Calvin DeWolf, Philo Carpenter, Dr.
C. Y. Dyer, L. C. P. Freer, Kev. F. Bascom and others who were
indignant that a pro-slavery mob had taken the life of Elijah P.
Lovejoy at Alton, and who revolted at the arrogant and cruel spirit
manifested by pro-slavery men everywhere, organized the old
"Liberty Party," and preached abolitionism pure and simple
throughout the length and breadth of the land.
Mr. Eastman took a great interest in the movement to repeal
the Black Laws of Illinois, and it is to his efforts, and to John Jones,
as much, if not more, than any others, that those disgraceful laws
In 1882, in a discourse before the Chicago Historical Society, he,
among other things, said :
By the ordinance of 1787 it is provided that " there shall be
78 CONSTITUTIONAL HISTORY OP ILLINOIS.
neither slavery nor involuntary servitude in the said Territory,
otherwise than in punishment of crime whereof the party shall have
been duly convicted."
The enabling act of Congress, by which the people of the State
might vote to put off their minority and enter into the indissoluble
bonds of the National Union, required strict conformity to this
condition of perpetual freedom.
The Constitution of the State, made in 1818, makes the harmo-
nious declaration: " Neither slavery nor involuntary servitude shall
hereafter be introduced into this State otherwise than for the pun-
ishment of crimes whereof the party shall have been duly con-
victed," indorsing and using the words of the ordinance.
One would think the temple of liberty sufficiently guarded, bul-
warked by these two firm buttresses, standing on the pillars of its
portal. But there is something more in this State Constitution,
with only a break of a semicolon. It is this: "Nor shall any male
person arrived at the age of twenty-one years, nor any female per-
son arrived at the age of eighteen years, be held to serve any
person as a servant under any indenture hereafter made, unless such
person shall enter into such indenture while in a state of perfect
freedom, and on a condition of a bona fide consideration received
or to be received for their services. Nor shall any indenture of
any negro or mulatto hereafter made and executed out of this State?
or if made in this State, whose term of service exceeds one year,
be of the least validity, except those given in cases of apprentice-
There seems to be a strange muddle of conditions in this lan-
guage. Involuntary servitude is prohibited, yet there are certain
conditions that remind us that permission is granted under prohi-
The constitutional provisions are continued in other sections:
" No person bound to labor in any other State shall be hired to
labor in this State, except within the tract reserved for the salt
works near Shawneetown, nor even in that place for a longer period
than one year at any one time, nor shall it be allowed there after
the year 1825. Any violation of this article shall effect the eman-
cipation of such person from his obligation to service." Permis-
sion again under prohibition! There is something about this salt-
work business worthy of attention. It was one of the rat-holes
through which slavery crept into the Territory. Saline springs or
bogs were discovered which gave to the early settlers the much
needed article of salt, if properly improved. To bring over a slave
from Kentucky, to make salt enough to salt his porridge, served
the legal purpose of his introduction, and many a farm was fenced
and worked in the southern portion of the State by slaves working
in the salt works, and that process of saving slavery with salt con-
tinued till 1825.
Another section provides as follows: "Each and every person
who has been bound to service by contract or indenture in virtue of
the laws of Illinois Territory heretofore existing, and in conformity
to the provisions of the same, without fraud or collusion, shall be
held to a specific performance of their contracts or indentures; and
such negroes and mulattoes as have been registered in conformity
with the aforesaid laws shall serve out the time appointed by said
laws; provided, however, that the children hereafter born of such
persons, negroes or mulattoes, shall become free the males at the
age of twenty-one years, and the females at the age of eighteen
years. Each and every child born of indentured parents shall be
entered with the clerk of the county in which they reside by the
owners, within six months from the birth of said child." It seems
by this that children of indentured persons were constitutionally
owned by their masters. By reference to the law, which will be
soon quoted, it will be seen that perpetual slavery was possible un-
der this clause of the Constitution, for none of the children were
emancipated till they were of legal age; but propagation may come
much earlier than legal majority.
Such were the constitutional provisions of the first Constitution
of the State, looking fair on their face; but on close scrutiny it is
seen to attempt to provide for a muddled condition of things, which
that old muddle of muddles, the slave system, ever brought to the
community and muddled the heads of our good fathers. They
would prohibit it, but were required to make provisions for its
continuance. The fathers of our Constitution, like Gov. Edwards
and Nathaniel Pope, were among the best of our early men. It
was the hardest fate ever brought upon a nation to face this
perpetuated evil of centuries with the necessity that it must be
ended ; and it is not strange that it took the greatest war of modern
times to cut that intricate knot with the sword.
80 CONSTITUTIONAL HISTORY OF ILLINOIS.
We must now go back a century or more to find facts which
will help to solve this muddle of the Constitution.
Notwithstanding Illinois was a part of the Northwest Territory,
and under the restriction of this ordinance, and one of the States
formed under it, it was nevertheless one of the old slave colonies.
Slavery was introduced into Illinois in 1720, when it was a part of
the French possessions of the Northwest. Philip Francis .Renault
formed a company in France for working mines in Upper Louisiana,
which was a part of Illinois; and he started from his country,
ostensibly in the mining business, with two hundred mechanics and^
laborers, and on 'his way, at San Domingo, he purchased five hun-
dred slaves arid brought them with him to Illinois. A portion of
these or their descendants were afterward removed to the other
French possessions on the west of the Mississippi, and helped to
swell the aggregate of Louisiana slavery. Those that remained were
the progenitors of the class known in our State from old time as
the "French slaves," and fell in later as a part of the report of the
census of slaves in Illinois, and the Frenchman Renault must be set
down as the first Illinois slave-holder.
The importation of blacks made a distinct class and the occa-
sion of a distinct order of the slave-holders about Kaskaskia and
the American bottoms, and where now descendants of both masters
and slaves reside in a common Illinois citizenship. At that
time slavery was legalized in all Christian countries that is,
if making a system which the law did not create be legalizing
it. If there is any law that created American slavery I have
not yet found it. These slaves that Renault brought to Illinois
were under French jurisdiction at that time and for nearly half a
century, till the Northwest was ceded to Great Britain in the treaty
of 1T63. They then came under the English law of bondage (if
there was any such); and when the territory was captured by
George Rodgers Clark, in 1778, which was done in the name of the
sovereignty of Virginia, if they continued slaves under any law it
must have been under the slave code of Virginia. When that State
ceded the territory to the Nation these slaves must have been per-
petuated in a bondage under United States law; and yet the United
States had no such law. From the cession of Virginia to the
Nation in 1784 till 1790, when Gov. St. Clair organized the county
which took his nam, the people who resided in this territory had
no legislative or judicial supervision, and were a law to themselves^
KEPEAL OP THE BLACK LAWS. 81
holding the slaves with the grip which they had previously
obtained. But the ordinance for the cession declared that " there
shall be neither slavery nor involuntary servitude in the said
Territory." Why this ordinance was inoperative in this essen"
tial point to the slavery then in existence, is something similar in
character to the later Dred Scott decision virtually, that not to
have slavery was unconstitutional. But the action of the ordinance
of 1787 was said to be prospective, and the courts never so decided.
It was not until 1845 that the Supreme Court of this State settled
this question of "vested rights," deciding that the slave descendants
of Renault's importation of 125 years previous were free; and the
Constitution of this State of 1848 put an end to involuntary servi-
tude of every form in Illinois.
In 1800 there was probably a population in the section that
became Illinois of 3,000 persons. At that time there were reported
in the census, including Indiana as well, 133 slaves. These must
have been in the main in Illinois, and the descendants of the " French
slaves." In 1810 Illinois had 168 slaves; in 1820, 917 a vast
increase in the course of twenty years, showing that the increase
must have come, if genuine slaves, from smuggling in from the
border slave States, and held under the inherited vested rights as
laborers in the salt works, or from the "indentured servants system,"
which was a dodge upon the restrictive clause of the ordinance. In
1820 the population of the State was 43,919 whites, 1,476 blacks
917 of which were slaves; total, 50,345. There came a habit of
disregarding this prohibition in bringing slaves into many parts of
the Territory, and even reporting; them in the census. This was
done in Wisconsin as late as 1830, the marshal reporting a number
of slaves in the said Territory. Dr. E. G. Dyer, of Burlington,
Wis., father of the United States Judge, C. E. Dyer, of Racine,
attacked the marshal for this illegal report, and disclosed the fact
that these reported slaves were held generally by persons in respon-
sible official positions in the United States Government. Consider-
able commotion was created soon after this report of 1840 by the
disclosure of the fact that Elder John T. Mitchell, a Methodist
preacher, and once a presiding elder in Chicago, had brought a slave
into Wisconsin, and held her as such, and afterward removed her to
Missouri, still retaining the woman as his property, and therefore
82 CONSTITUTIONAL HISTORY OF ILLINOIS.
gained the reputation of being a clerical kidnaper. Such were some
of the early assumptions of the doctrine of squatter sovereignty,
that a man had the inalienable right to take his slave with him into
a Territory into which he chose to remove. These facts are a little
ahead of the logical events of history. But it suits the symmetry
of the subject to bring them in here. It is best, however, to state
here that the prohibition of slavery in the Northwest Territory was
a bid, like "free Kansas," for its settlement by a hardy and indus.
trious class, who thrived by the labor of their own hands, and for
its settlement by a class of men from the south who were conscien-
tiously opposed to slave-holding. It was emphasized as a free
country, and free men felt invited to make here their homes. The
early population of the .Northwest was composed of the mingled
character of such men, and those who believed that prosperity came
from one man having the power to compel some other man to work
for him for nothing.
There came, then, from this condition the incipient conflict of
ideas of the past generation. The anti-slavery sentiment of the
revolution was then pervading as a live principle. There was dis-
satisfaction by interested persons on the other side at the restriction
in the ordinance. The first petition on the subject to Congress
came in 1796 from four persons in Kaskaskia, in this State, the seat
of this inherited French slavery, asking that slavery might be tol-
erated there. It seems that they felt they were holding their chat-
tels on a feeble tenure. At that time we were all in one common
Northwest Territory. Ohio became a State in 1800; then all the
territory west and north of the Ohio river, from the mouth of the
Kentucky, became the Territory of Indiana, with William Henry
Harrison, governor. In 1804 a convention was held at Yincennes,
of which Gov. Harrison was president, to deliberate on territorial
interests, and from this convention went up a memorial to Congress
which was referred to a committee, which reported recommending
the suspension of the sixth article of the ordinance of 1787, " in a
qualified manner for ten years, so as to permit the introduction of
slaves born in the United States." This report was not adopted,
neither was the previous prayer of the Kaskaskians heeded.
At the session of the Indiana Territorial Legislature in 1806-7
a series of resolutions were adopted and reported to Congress by
REPEAL OF THE BLACK LAWS. 83
the delegate of the territory, requesting the suspension of this
restrictive article of the ordinance. We were then a part of that
Territory. Jesse B. Thomas was speaker of the House, and Pierre
Menard president of the Council, both citizens of Illinois, the latter
a French slave-holder and the former intermarried with such.
This report was lost in Congress also. These early efforts to
establish slavery aroused the people, and an issue was made similar
to that which was made afterward in our State called the " con-
vention question." Jonathan Jennings, an anti-slavery man, was
elected delegate to Congress, which position he held till Indiana
was admitted as a State. It is known that Gen. Harrison was in
favor of introducing slavery into the Northwest Territory.
These facts prepare us for the introduction of the " The Black
Code of Illinois." Some of the people, if they could not have
slavery legitimately, would have it illegitimately, for the infamy
which fell upon us was conceived in sin and brought forth in
iniquity, a half-parented progeny.
The Indiana Territorial Legislature passed an act, dated Sep-
tember 17, 1807, which is the nucleus of our Black Code, with this
title : " An act concerning the introduction of negroes and mtilat-
toes into this Territory."
There are five sections in this act, and it permits the owner of
any negro or mulatto, above the age of fifteen, to bring such per-
son into the Territory, and within thirty days take him before the
clerk of the court, and there make an agreement for service,
which is to be recorded. If the slave should refuse to make such
contract, then the owner may return him back to slavery within
sixty days. Such slaves should be held to service males until
thirty-five years old and females until thirty -two. The master was
required to register such slaves and the children with the clerk;
and these children should be owned by the master and held to serv-
ice until the age of thirty, and females until the age of twenty-
This continued to be the law of the Territory of which Illinois
was a part. In 1809, Indiana became a State, and Illinois inherited
the Territorial condition and laws, and re-enacted the above. It is
the law referred to in the Constitution. Such continued to be the
law until remodeled after the Constitution of 1819.
But the iniquity was not yet fully matured. Another law was
84 CONSTITUTIONAL HISTORY OF ILLINOIS.
passed in 1829. These were codified, BO to speak, in 1833, in the
There are twenty-five sections in the law of March 80, 1819.
It prohibits any black or mulatto person coming into the State
without producing a certificate of freedom. It was the first blow
to free negroes. It followed the precedent of slave State legisla-
tion, and was aimed to keep Illinois from being an as} T lumfor fugi-
tives from oppression. Free negroes having such certificates were
required to register their children. It forbids any person bringing
slaves into the State for the purpose of emancipation. Under this
act Gov. Coles was fined for emancipating his slaves July 4, 1819.
It forbids slaves leaving plantations, and provided that if they be
found away from their plantations without a pass they might be
whipped by order of a justice to the extent of thirty-five lashes;
the owner of a plantation finding such negro on his premises might
flog him ten lashes. The assembling of negroes to a number more
than three was to be regarded as a riot, and such assembling, seditious
speeches, etc., might be punished by a justice at his discretion by
Hogging. A white person was fined $20 for allowing any such
assemblage. It was made the duty of all judges, coroners, justices^
etc., to arrest those found in any such assemblage and put them in
jail till next day, and then flog thirty-nine lashes on the bareback*
unless it should occur on Sunday; then the flogging was to be
piously done on Monday.
This law seems to be a transcript of the slave codes of Louis-
iana or South Carolina. This act was passed under the administra-
tion of Shadrach Bond, our first governor. Hooper Warren, editor
of the first anti-slavery paper of the Nation, printed at Edwards-
ville, said that a party had already been formed in the State called
the Slave party. This party attempted to nullify the Northwest
ordinance by passing an act in 1823 to call a convention to alter the
Constitution so as to admit slavery. Gov. Coles had, however,
been previously elected by a small majority, and he was an anti-
slavery man of the Jefferson school. The convention project was
voted down by the people. The people were anti-slavery and the
Legislature pro-slavery. Senators in Congress voted to admit Mis-
souri with slavery, and the people condemned the act. They
elected Daniel P. Cook, after whom Cook county was named, who
voted against Missouri, and the people continued to re-elect him
while the Legislature made senators of the candidates he defeated
REPEAL OF THE BLACK LAWS. 85
at the polls. Free people of color humbly petitioned the Legisla-
ture for the repeal of the burdensome Black Laws, but their peti-
tions were unheeded, and heavier burdens were laid upon them.
So, in 1829, ten years after the previous elaborate Black Act, and
four years after the slave party met with its rebuff in the defeat of
the call for the convention, the legislators attempted to do
by legislation what the people had forbidden them to do by the
Constitution. The act was approved January 7, 1829. It pro-
hibits any black or mulatto person, being a citizen of any one of the
United States, coming and residing in Illinois until he produces a
certificate of freedom and gives bonds of $1,000 that he will not
become a charge to the county as a pauper, and that he will obey
all laws enacted, or which may be enacted, and $500 fine is imposed
on any person who will give employment or sustenance to any such
black person who does not give the bond. Any person who can
not furnish a certificate shall be deemed a runaway slave, and he
may be taken up by any inhabitant and brought before a justice,
who shall commit him to the sheriff, who shall commit him to jail,
and advertise him, and, if no master comes, sell him for time of
service to pay the expenses of his arrest. The law forbids, under
penalty of fine and whipping, the marriage of any colored person
with a white person. It also provides that if any negro who is the
property of any person shall come into the State for the purpose
of hiring out, and shall institute proceedings for his freedom, the
case shall be thrown out of court and the presumptuous negro
thrown into jail.
These two laws of 1819 and 1829, and the act of February 16,
1833, in the criminal code, were the main pillars of the Black Code.
The criminal code enacts that if any person shall secrete any escaped
slave, or shall hinder or prevent the lawful owner from retaking
him, he shall be fined $500 and be imprisoned not exceeding six
months. Another section forbids any person who holds any indent-
ured servant from taking him out of the State for sale, or other-
wise kidnaping him, under the penalty of a fine of $500. The
crime of kidnaping is punished the same as the crime of protecting
the fugitive, less the imprisonment. The testimony of no colored or
mulatto person can be taken in evidence against a white person.
No colored child is permitted to attend school with white children.
Indentured servants and slaves were by law made property, and
could be attached for debt, sold as property, devised in wills, and
86 CONSTITUTIONAL HISTORY OF ILLINOIS.
sold to settle estates; and in taxation ranked with cattle, "jennies,"
and jackasses as property.
In 1845 there was another revision of the Jaws, and these were
all compiled, boiled down, and made available for handy use in the
administration of justice. But this was not the end of legislation.
Two or three years after the passage of the National Fugitive Slave
Law there was another act passed, dated February 12, 1853, which
would seem to be a supererogation, as it seems to be a repetition of
all that went before, with this difference, that it made the act of
any colored person coming into the State, or any person bringing
such a one in, a high misdemeanor. That was coming up to the
climax and apex of crime over and under the color line. This act
was to be enforced by pains and penalties and fines and imprison-
ments of the most severe and elaborate character. These acts were
the laws of the State for more than a generation, and by the friends
of the anti-slavery agitation were attempted in many sections to be
rigidly enforced. Then came a period of the operation of the
underground railroad, the attempted enforcement of these laws,
kidnaping, lawful and unlawful arrests and rescues and trials before
the courts for harboring, secreting and delivering the slave from his
C3 * CJ
master or from the officers all occurring with many rich scenes of
humor, in which the "black brother" played the prominent part.
The Supreme Court in 1855, in the case of Joseph Jarrot, a
colored man, v. Julia Jarrot, made a decision that the inherited
slavery from the old French import was unconstitutional. Joseph
was a descendant of the French slaves and Julia of the slave-holders.
The Constitution of 1848 made all slavery unconstitutional in
accordance with the decree of the ordinance of 1787. But the
Black Code, in the main, remained a part of the law till the close of
the slaveholders' rebellion. In 1864 John Jones, a noted mulatto
of Chicago, who had been free born, and had deposited his freedom
papers with the Historical Society, carried a petition through the
streets of Chicago asking, since his race had been made free, that
all these laws that made distinction on account of color might be
erased from our statute book. He went to Springfield and engi-
neered the enterprise. Senator Lansing introduced the bill early
in the session of 1865, for their repeal, and they went out as the
smoke flies upward.
This account of the repeal of the Black Laws by Mr. Eastman,
is so full and complete that we have availed ourselves of his labors
MASON AND DIXON's LINE. 87
in this regard. Mr. Eastman was one of the most loyal and patri-
otic citizens that ever lived in our midst, and on the accession
of Mr. Lincoln to the office of President was rewarded by him for
his faithful services to his country, by appointing him United States
Consul to Bristol, England, where he remained for several years.
He died at Chicago, greatly honored and respected, some three
Mason and Dixon's Line in Illinois.
hostile feelings which were aroused among the slave-hold-
- ing and free State advocates during the great convention
struggle of 1823-4 never were allayed, and gradually led to a wide
separation in all political matters.
Almost from the establishment of the seat of government at
Kaskaskia, the ancient capital of the French of the "Illinois
Country," an imaginary, yet dividing line, has existed between the
northern and southern half of the State. It has moved forward as
the capital has been changed, like that of the center of population,
but always northward. The first parallel was at Kaskaskia, next at
Yaudalia, but when the " long nine " moved the capital from that
ancient seat of empire to Springfield, they carried with them " this
sign of the Zodiac," as if it was the ark of the covenant, and it has
ever since been " like a pillar of fire by night " and " a cloud by
day," to all the various tribes within this State.
Among politicians the rule was, as old General Linder once
said, like that which governed the followers of Cortes. " After the
battle every excess of rapacity was sufficiently vindicated by the
plea that the sufferers were unbaptized. Avarice stimulated zeal.
Zeal consecrated avarice. Proselytes and gold mines were sought
with equal ardor." In all political campaigns the men of the North
were most convenient and useful allies to draw on to help defray
party assessments and furnish the sinews of war, but it would never
do to allow them to direct the policy of the party.
In the exciting times of election the Yanks were good enough
to swell the majorities, but at all other times their wants and neces-
88 CONSTITUTIONAL HISTORY OF ILLINOIS.
sities went unheeded. When the inhabited parts of the State
extended a little north of Alton, then the people of Randolph,
Monroe, St. Clair and Madison, now southern counties, were as
anxious for a canal as the people of La Salle and Hennepin. When
the seat of government was removed to Yandalia and afterward
to Springfield, those living between these two places immediately
became Southerners and ever after opposed a canal with all their
power and might.
Time, it is true, has somewhat modified this feeling, but still
"the Cooks" are distrusted and the representatives of portions of
the State greatly fear " the Trojans bearing gifts." We think,
however, that it is about time that this " Mason and Dixon's line "
business should be obliterated, and the interests of the people be
considered strictly upon their merits, whether those wanting public
improvements happen to live in Chicago, Cairo, Springfield or
There has never been a free zone in Illinois and no neutral ground,
but from the very earliest times there has been a north and south
party and the prejudices of each against the other have been mani-
fested in almost every constitutional convention; at every session
of the General Assembly and in every deliberative body ever called
for any purpose whatever. Governor Ford in his " History of
Illinois" refers to it in these terms : "Obstructions to the success
of wise policy which would relieve the State from multiplied evils,
were to be found in the character, varieties and genius of the masses
of the people, and in the motives, aims and enterprises of poli-
ticians. The shape of the State naturally divided the Legislature
into represensatives from the south and representatives from the
north, and under any circumstances a State so long in proportion
to its breadth, must contain much and many elements of discord.
The southern portion of the State was settled principally by
people from the slave-holding States; the north principally from
New York and New England. The southenrpeople were generally
poor; they were - such as were not able to own slaves in a slave
State and who came here to avoid slavery. A poor white man in
a slave State is of little more importance in the eyes of the wealthy
than the negro. The very negroes of the rich call such poor per-
sons " poor white folks."
The wealthy immigrant from the slave States rarely came here.
He moved to some new slave State, to which he could take his
MASON AND DIXON's LINE. 89
negroes. The consequences were, that our southern settlements
presented bnt few specimens of the more wealthy, enterprising,
intellectual and cultivated people from the slave States. Those
who did come were a very good, honest, kind, hospitable people,
unambitious of wealth and great lovers of ease and social enjoy-
The settlers from the North, not being debarred by our Consti-
tution from bringing their property with them, were of a different
class. The northern part of the State was settled in the first
instance by wealthy farmers, enterprising merchants, millers and
manufacturers. They made farms, built mills, churches, school-
houses, towns and cities, and made roads and bridges as if by magic,
so that, although the settlements in the southern part of the State
are twenty, thirty, forty and fifty years in advance, on the score of
age, yet are they ten years behind in point of wealth and all the
appliances of a higher civilization. This of itself was cause enough
of discord between the two ends of the State. The people of the
South entertained a most despicable opinion of their Northern
neighbors. They had never seen the genuine Yankee. They had
seen a skinning, trafficking and tricky race of peddlers from New
England, who much infested the West and South, with tin ware,
small assortments of merchandise and wooden clocks, and they sup-
posed that the whole of the New England people were like these
They formed the opinion that a genuine Yankee was a close,
miserly, dishonest, selfish getter of money, void of generosity, hos-
pitality or any of the kindlier feelings of human nature. The
Northern people formed equally as unfavorable an opinion of their
Southern neighbors. The Northern man believed the Southerner
to be a long, lank, lean, lazy and ignorant animal, but little in advance
of the savage state, one who was content to squat in a log cabin,
with a large family of ill-fed, ill-clothed, idle, ignorant children.
The truth was, both parties were wrong. There is much natural
shrewdness and sagacity in the most ignorant of the Southern peo-
ple ; and they are generally accumulating property as fast as any
people can who had so little to begin with. The parties are about
equal in point of generosity and liberality though these virtues
show themselves in each people in a different way. The Southerner
is, perhaps, the most hospitable and generous to individuals. He is
lavish of his victuals, his liquors and other personal favors. But
90 CONSTITUTIONAL HISTORY OF ILLINOIS.
the Northern man is the most liberal in contributing to what-
ever is for the public benefit. Is a school house, a bridge or a
church to be built, a road to be made, a scholar, a minister to be
maintained or taxes to be paid for the honor or support of govern-
ment, the Northern man is never found wanting. This misconcep-
tion of character was the cause of a good deal of misunderstanding.
The great canal itself, from Lake Michigan to the Illinois river, was
opposed by some, at an early day, for fear it would open a way for
flooding the State with Yankees; even as popular a man as the late
Lieutenant-Governor Kinney opposed it, in a speech in the Senate,
on this ground. He said the Yankees spread everywhere. He was
looking daily for them to overrun the State. They could be found
in every country on the globe; and one strong proof to him that
John Cleves Sy mines was wrong in his theory of the earth was,
that if such an opening at the north pole as that theory supposed
really existed, the Yankees would have had a big wagon road to it
long before its discovery by Mr. Symmee.
In this manner, and by constant appeals to the prejudices of the
masses, ill-feeling was engendered, and almost any public enterprise
which was proposed by the people of one section of the State would
be opposed by the other. It was exactly such a feeling as existed
between the people of the Southern States and the people of the
Northern States before the war.
Another thing: The State of Illinois has, from the beginning,
been cursed by politicians. They have infested the country, and
from the time when Jesse B. Thomas became a delegate in Con-
gress from the Indiana Territory, down to a period within the
memory of men still living, northern and southern politics have
swayed and ruled the hour.
All local questions became subordinate to national questions, and
consequently men did not seem to take much interest in the develop-
ment or improvement of the State, but the great and absorbing
question always was, what would be for the best interests of the
party, and how this and that would affect the party. All candidates
for office were selected with reference to their ability to control
the masses and draw votes, and not with reference to their ability
to devise a system of public improvements, or establish a sound
system of finance or build up manufactories. Stump oratory was
of greater importance than the wisdom of Solomon, and the gift of
gab greater than the philosophy of Plato or Aristotle.
PERIOD PRECEDING CONVENTION OF 1847. 91
It is trne that the annals of this State have been adorned by
men who will forever take rank with those of the greatest orators of
any age and any nation, and the cultivation of eloquence is not to be
despised or undervalued, but the ability of a man to harangue the
mulitnde and carry the crowd is one thing, statesmanship is entirely
another. Politicians know a great deal better how to obtain an
office than how to perform its duties when they have obtained it.
Political science ought to be studied with reference to the best
interests of the government, and not for the best interests of any
given party. Education should be more universally diffused,
knowledge made more abundant, and, above all, the people must
be taught the power of thinking for themselves and not permit
others to do it for them.
The time has come for wiping out Mason and Dixon's line in
the State of Illinois and including the entire State in a free zone.
The Period Preceding- the Calling 1 of the Constitutional
Convention of 1847.
period preceding the calling of the convention of 1847,
J- had, through a series of years, been a period of unrest and
excitement and, at times, of great turbulence. Politics seemed to
absorb the attention of everybody and there was a greater amount
of partisanship to the square rod than was ever found in the history
of States. The principal business of the lawyers and the people
generally, seems to have been politics.
Commencing with the contest over the appointment of Secretary
of State in 1838, by Governor Carlin, to take the place of one
Alexander P. Field, who had been appointed by Governor Edwards
some ten years before, all the politicians in the State became
involved until it reached the Supreme Court, and soon a war broke
out upon the judges of the Supreme Court which furnishes as
disgraceful a chapter as ever occurred in our local annals, with the
exception of the efforts of the slave-holders to make Illinois a slave
State. Field was a most striking character. He was a native of
Kentucky, a nephew of Nathaniel Pope, who was secretary of the
92 CONSTITUTIONAL HISTORY OF ILLINOIS.
Territory of Illinois, afterward delegate in Congress and then judge
of the United States District Court for the State of Illinois. He
was perhaps the innocent cause of more bad blood and of more
political intrigues than almost any man of his time. He was a
member of the Lower House, or General Assembly, from Union
county, from 1822 to 1828, and from 1828 to 1830 he represented
Union, Johnson and Alexander counties. He was Secretary of
State from 1828 to 1840. He had, by a process of evolution,
gradually become a whig, and the democrats wanted to get him out
of the way and obtain the office.
After several years of strife and turmoil, in which the late
Judge Douglas, Judge Trumbull and McCIernand became con-
spicuous, he was legislated out of office and was then appointed
secretary of Wisconsin Territory. Then he moved to New Orleans,
where he became distinguished as a criminal lawyer, was elected a
member of the 48th Congress and on the Tth of December 1863, he,
in conjunction with his colleague, Thomas Cottman, was put on the
roll of the House as a member of Congress from Louisiana. They
both voted on preliminary questions and for speaker, but after the
organization was perfected, the House refused to swear them in as
members, and subsequently decided that they were not entitled to
seats. After the war was over he became attorney-general for
the State of Louisiana, and died in 1877, at New Orleans, after a
long and painful illness. He was a man of great ability, but some-
what erratic, as he appears to have been a "convention man " in
1823-4, and made the motion to unseat Hansen against all par-
liamentary usages, in order to carry the call for a convention by a
two-thirds majority. "We met him at Springfield, in 1870, where
he came on a visit, while the constitutional convention was in ses-
sion, and he was most cordially received by his old acquaintances.
It is not necessary to go into details in regard to Field's claim to
office, for there are scores of people still living who know all about it.
The Field controversy had hardly closed, however, before a
much greater one arose, and which led to an open and direct attack
upon the Supreme Court, and which finally led to its complete re-
The Partisan War on the Supreme Court and the Reor-
ganization of the Same.
THE Constitution of 1818 provided that "the justices of the
Supreme Court," as they were called, should he appointed by
the Legislature, and hold office during life; provided, however, that
the justices first appointed should hold office only five years. The
selection by the Legislature was a bad feature, but when we con-
sider the character of the men who were actually appointed, the
provision that those first appointed should only hold for five years
was a wise one. The court consisted of a chief justice and three
associate justices. John Phillips was chief justice; William P. Fos-
ter, Thomas C. Brown and John Reynolds associate justices.
Judge Phillips appears to have been a lawyer, but came to the
State, in 1812, a captain in the regular army. Although a soldier,
politics was his best hold.
He was nominated by the pro-slavery party for governor in
1822, was defeated by Coles, when he resigned in disgust and left
the State. He went to Tennessee.
Judge Brown was a large man, affable, yet somewhat stately,
with but little industry and possessed of but few of the qualifica-
tions for a judge. He was assigned to the northern circuit; was
laughed at and despised by many lawyers, who sought to impeach him
for unfitness, but he remained on the bench until 1848, when the
new Constitution took effect.
The selection of John Reynolds afterward known as the Old
Ranger was at that time regarded with derision and as a farce, for
he had studied law only a few months, had had no experience or
practice whatever, and was absolutely without any of the qualifica-
tions requisite for judge of the highest court in the State.
But the climax was capped in the selection of a man by the
name of William P. Foster, who had not been in the State much
more than three months. Nobody knew it at the time, but he
afterward proved to be a consummate scoundrel and swindler, and no
lawyer at all. He had never studied law and had no license, yet he
94 CONSTITUTIONAL HISTORY OF ILLINOIS.
contrived to stay in the State for about a year, never offering to per-
form any of his duties, yet drawing his salary regularly. He
suddenly decamped and was heard of several times afterward in
connection with numerous crimes and villainies.
Thomas Reynolds succeeded Judge Phillips as chief justice,
and William "Wilson to succeed Foster. Wilson was a man of con-
siderable ability and proved to be a sound judge and commanded
the respect of the bar.
At the session of 1824-5 the Legislature, under the provisions of
the Constitution, re-organized the judiciary by creating five Circuit
Court judges, who were to hold all the Circuit Courts in the State;
and the Supreme Court, composed of four judges, was to be held
twice a year at the seat of government. William Wilson was
elected chief justice; Thomas C. Brown, Samuel D. Lockwood and
Theophilus W. Smith, were elected associate judges of the
Supreme Court. John York Sawyer, Samuel McRoberts, Richard
M. Young, James Hall and James O. Wattles, were elected judges
of the circuits, and James Turney to be attorney-general.
The appointment of Judge McRoberts was one not fit to be
made. He was always a most bitter and relentless partisan. He
removed Joseph Conway and appointed Emanuel J. West, one of
his particular friends, to the office of clerk of Madison county. The
people resented this to such an extent that they immediately elected
Conway to the Senate and kept him there for eight years.
The salary of these judges was fixed at $1,000 per year, pay-
able, however, in depreciated currency, which reduced it to about
$400. The Missouri Compromise measures had stirred up the
country so that judges and everybody else had. taken sides; the
movement to make Illinois a slave State had engendered a great
deal of bad feeling in which Judge Smith had engaged in an open
street brawl with one Hooper Warren, whom he undertook to cow-
hide for personalities in the streets of Edwardsville. Then came
the triangular contest for the presidency between Henry Clay,
Andrew Jackson and John Quincy Adams in 1824, in which it was
charged that Wilson, Lockwood and Brown indorsed the action of
Daniel i 3 . Cook in giving the vote of the State to Adams, while
Smith was for Jackson.
The public seemed to make no discrimination or allowance for
the opinions of judges any more than anybody else. Wilson,
Lockwood and Brown, it is said, -maintained strict silence, but Smith,
PARTISAN WAfi, ON THE SUPREME COURT*. 95
who was one of the most pestiferous demagogues that ever lived, was
" blatant mouthed."
The very fact that the judges were appointed for life made
them more and more unpopular and the whole system was attacked
and declared a fraud and an imposition. But this was not all. The
Constitution made them a council of revision, and required that all
bills which should have passed the Senate and House of Kepresent-
atives, shall, before they become laws, be presented to said council
for their revision and consideration, and if they disproved of the
same they could not become laws without receiving the votes of a
majority of the whole number of members elected.
The provision was a wise one in many respects, but as it gave
the judges of the Supreme Court a quasi veto power on the acts of
the Legislature, it exposed the judges to the most severe criticisms
every time they acted contrary to the Legislature, and they were
often misrepresented, vilified and threatened with impeachment and
a reorganization of the judiciary was resolved upon. in the
reorganization in the first instance, the State was divided into five
circuits, and five circuit judges were appointed, leaving to the
supreme justices only appellate jurisdiction with no circuit duties.
At the session of the Legislature of 1826-27, four of the circuit
judges were legislated out of office and their duties assigned to the
four Supreme Court judges.
The reason assigned for this change was economy ; but that was
not the true reason at all, and every one knew that it was not.
The combined salary of all the nine judges was only $6,200,
and the saving was ostensibly $2,400, but it proved such an injury
to the public in consequence of delays and postponement of cases,
and was found so deleterious, that there was a universal outcry to
return to the old system. The democratic Legislature was unable
to starve the whig justices out of office or compel them to resign
by any species of petty persecution, and for a time they ceased to
badger the judges. But this state of things was short-lived, and in
1840-41, matters reached a climax.
The Supreme Court decided against McClernand, who instituted
the suit against Field, and
The war which for a space did fail
Now trebly thundering swelled the gale.
The democrats resolved to reform the judiciary.
The Constitution of the State provided that all free white male
CONSTITUTIONAL HISTORY OP ILLINOIS.
inhabitants, over the age of twenty-one years, who had resided in
the State for six months, should be entitled to vote at all general
and special elections.
The whigs contended that this did not authorize any but citi-
zens to vote, while the democrats contended that it included aliens
as well as citizens.
There were in the State at this time about 10,000 alien votes,
nine-tenths of which were democratic, and this matter assumed
great importance. A case came up to the Supreme Court from
Galena, in December, 1839, and had been argued, but the democratic
lawyers discovered, as it is said, by the aid of Judge Smith, that
a date was wrong in the record and a continuance was had until
December, 1840. This was thought at the time to have been one
of the sharpest things ever done, because people believed that the
majority of the judges had determined to decide against the aliens
and they could in this way be secure for at least one more election.
" The plan of campaign," as it is now called in Ireland, which
was agreed to, was broad and comprehensive. They would abolish
all the circuit courts, repeal or legislate the judges out of office,
and create five additional judges of the Supreme Court, all of whom
were required to hold circuit courts in place of the circuit judges
legislated out of office. A long and violent struggle ensued, but
the bill was finally passed through both Houses and returned by the
council of revision, with their objections, by a considerable major-
ity in the Senate, and by one majority in the House. By this means,
Ford says, the new Secretary of State was secured in his office, and
the democratic party were secured in the continued support of the
alien vote ; for all the new judges elected at this session were as
thoroughly satisfied of the right of each governor to appoint his
own Secretary of State, and of the right of the alien inhabitants to
vote, as the whig judges could be to the contrary.
During the pendency of this question before the Legislature
the whig judges decided the alien case from Galena, but did not
decide the main question, and it was charged by the democrats that
the whig judges had hunted up on purpose a trivial point to evade
responsibility, in the hope that when the dominant party could see
that they were no longer threatened with a decision contrary to
their wishes, they would abandon their reform measure.
Stephen A. Douglas, who had been one of the counsel for the
aliens, had, it appeared, been in constant and daily communication
with Judge Smith, who had long aimed to be United States Sen-
ator, and one evening, in a speech in the lobby of the House, boldly
affirmed that the judges had at one time all their opinions written
and ready to deliver, and that all but Judge Smith were against the
aliens, and they would have so decided if a defect in the record
had not been discovered. He affirmed this in the most positive
manner, and stated that he knew exactly what he was about ; that
he had the information upon authority that could not be denied,
and nobody dared deny it ; and he therefore proceeded to denounce
the whig judges in the strongest language at his command. His
statements attracted great attention, and were reiterated by John
A. McClernand in the House.
John A. McClernand was at that time a member of the House
of Representatives and in the heat of debate also made the most
direct and specific cliarges against the judges, charging them with
misconduct, with violations of their oaths of office and of their
attempt to disfranchise thousands of inhabitants of the State, and
suggesting that they had committed high crimes and misdemeanors
enough to warrant their impeachment and removal from office.
The judges had before this been repeatedly assailed by speeches
in the lobby, by anonymous newspaper articles and unsigned hand-
bills, which had been circulated everywhere in the city and around
the capital and posted on the corners of the street, but they had,
much to their credit, maintained a most dignified silence.
But the time came at length for them to break silence, and John
J. Hardin, who was a member of the House of Representatives
immediately addressed a note to the judges, asking them if the
statements which had been made by Douglas and McClernand were
true. To this communication they returned the following reply :
SPRINGFIELD, Jan. 26, 1841.
John J. Hardin, Esq.,
DEAR SIR : Your letter of to-day has just been received and we
proceed to answer it without hesitation. In doing so, we can not,
however, but express our great astonishment at the character of
the statement to which you refer. Yon say that Mr. McClernand,
a member of the House of Representatives, has asserted in debate :
" I am authorized to say and I do say on my own responsibility, if
any such responsibility is needed, that the judges of the Supreme
Court prepared an opinion against the right of foreigners to vote,
98 CONSTITUTIONAL HISTORY OF ILLINOIS.
at the last June term of that court, but on account of objections
made by counsel to a mistake in the record, they withheld their
opinion but did so most reluctantly. The opinion has gone abroad
that these judges made the decision, recently delivered, on the sub-
ject of the right of foreigners to vote, in order to defeat the bill
under consideration, and to prevent these judges going on the cir-
To this statement we give the most unqualified denial in all its
points; neither of the members of the court having ever prepared
or written any opinion against the right of aliens to vote at elections.
As to the insinuations that the decision of any case was made at
the time to defeat the judiciary bill we reply, it is in all its parts
equally unjust and without a pretense for its justification.
We have thus promptly complied with your request and we
can not close this communication without remarking the great
injustice done to ourselves, not only by the statement referred to,
but the numerous other slanders, which in our situation we have no
means of repelling. We have the honor to be
Tour obedient servants,
THOS. W. SMITH,
SAMUEL D. LOCK.WOOD,
THOMAS C. BKOWN.
This communication was a stunner and created a great sensa-
Douglas and McOlernand were called to account in both Houses
of the Legislature and it was demanded of them to give their
authority, and they gave Judge Smith as their authority, and they
were backed up in their assertions by several very prominent men
who had heard Smith say the same thing. Judge Smith now
became very unpopular, was accused of hypocrisy and prevarication
and denounced by men in his own party as a liar, an intriguer and
utterly ( unworthy of confidence or belief. He lost caste and never
The history of this man Smith has never been written, but if it
should be, it would furnish one of the most striking examples
of the demagogue on the bench, that was ever presented to the
people of this country. He had, as one of the old pioneers once
told me, always a penchant for politics, was always scheming and
plotting, and greatly desired to be United States Senator, and if
PARTISAN WAR ON THE SUPREME COURT. 99
lie could not be that, he wanted to be governor; but having
obtained a seat on the Supreme Bench, he was reluctant to give it
up, and undertook to uee it as a stepping stone to something else-
His devices and intrigues to this end were, according to all accounts,
unceasing. In fact, he never lacked a plot to advance himself or
blow up some other person. He was laborious, indefatigable and
untiring in his scheming; but his plans were too complicated and
intricate to be successfully executed. He was always unsuccessful,
and as misery loves company, he was delighted alike at the mis-
haps of friends and foes, and "was ever chuckling over the blasted
hopes of some one else." He was impeached by the House of
.Representatives in 1833 on several charges of gross misdemeanor in
office, and only escaped conviction by the Senate by that provision
of the Constitution which required a two-thirds vote of that body to
sustain the charges.
It is no liglit thing for a man like Judge Smith, who was called
to occupy one of the highest positions in the State, to be thus sum-
moned before the tribunal of posterity and have judgment passed
upon him. But men must not trifle with justice or with a high and
holy office. The generation to which he belonged has disappeared,
and the time has come when the rash and indiscriminate judgments
which his contemporaries passed upon his character may be calmly
revised by history; but in the interest of justice, and as a warning
to all demagogues who may seek to prostitute a high judicial posi-
tion to their own purposes and their own aggrandizement, we have
been compelled to make this note, and this shall be our excuse for
disturbing his consecrated mould.
Of him it may be said, in the words of Hudibras :
Our State-artificer foresaw
Which way !he world began to draw,
For as old sinners have all points
0' th' compass in their bones and joints,
Can by their pangs and aches find
All turns and changes of the wind,
And better than by Napier's bones
Feel in their own the age of moons;
So guilty sinners in a State,
Can by their crimes prognosticate,
And in their consciences feel pain
Some days before a shower of rain;
He therefore wisely cast about
All ways he could to ensure bis throat.
100 CONSTITUTIONAL HISTORY OF ILLINOIS.
The Council of Revision which still existed and which still
retained a shadow of authority did not approve the bill and
returned it to the House with their objections. The bill was, how-
ever, repassed by a majority of one, and that one vote was given by
a member who opposed the bill on its passage and who immediately
after was appointed clerk of the Supreme Court as newly organized,
the five new judges, without any consultation whatever with their
associates, turning out the old clerk and putting this very conscien-
tious and reformatory member in his place. But this was not all.
The old judges, it mattered not where they lived, were assigned to
circuits as far removed from their homes as possible, and they
were treated with every mark of discourtesy within their power.
Old Judge Brown, whose home was in Shawneetown in the
extreme southern part of the State, was assigned to the Galena
district. This was done in order to secure his resignation, but it
proving unsuccessful, an attempt was made to remove him by
impeachment on the following charges and specifications, to wit:
i4 That he had not the natural strength of intellect and lacked the
legal and literary learning requisite and indispensable to the high
and responsible duties devolving upon him as a judge of the
Supreme Court; that his opinions delivered in that court were
written and revised by others and that his decisions on the circuit
had been the mere echo of some favorite attorney; and that by
nature, education and habit he was wholly unfit for his high
It is probable that never since the impeachment of Warren
Hastings for high crimes and misdemeanors, had there been an
instance like this, of an attempt so degrading. Eis office was wanted
for another, and so eager were the applicants that they could not
wait for the old man to pay the debt of nature. They were more
rapacious and merciless in their demands than the Mahrattas, for
they had some respect for the rules of justice and the sentiments of
humanity. But the common sense of mankind, which, in matters
of this sort, seldom goes wrong, will always recognize a distinction
between crimes which originate in an inordinate zeal for the com-
monwealth and crimes which originate in selfish cupidity. Indeed,
if a man is honest and upright, the community is quite apt to over-
look transactions which may even be characterized as indelicate and
irregular. It is quite likely from what we know and what we have
heard of Judge Brown, that he had long since outlived his useful-
PARTISAN WAR ON THE SUPREME COURT. 101
ness and would have commanded the respect of the community had
he voluntarily retired to private life and enjoyed the closing hours
of a serene old age in the perusal of the classics like "De Senectue,"
or even Bunyan's Pilgrim's Progress, but he was reluctant to be
driven from his post of duty or have his effects administered upon
before the appointed hour. An impression got abroad that the
weak old man was being persecuted and the impeachment proceed-
ings which had barely been initiated, were dropped and came to
All these things that we have narrated, however, did not have
the effect to stay the tide of reform which now set in. The demo-
crats were determined to teach the judiciary a lesson and to give
them to understand and be informed that if. they undertook to
thwart " the will of the people " they must take the consequences.
The reform bill passed, and five additional judges of the Supreme
Court were forthwith elected, consisting of Thomas Ford, Sidney
Breese, Walter B. Scates, Samuel H. Treat and Stephen A. Doug-
las. Some of these newly appointed judges applied themselves
with great diligence to the discharge of their duties and afterward
became distinguished as jurists, notably Judges Breese and Treat.
Judge Douglas was far better fitted for the stormy scenes occur-
ring in the halls of Congress than in the consultation chamber or in
listening to dry and uninteresting arguments on the bench, and in a
short time resigned and entered upon a career in that great world of
politics that is almost without a parallel. Judge Douglas wrote but
very few opinions while on the bench, but there is one that was
written by him that is quite famous and that is the opinion in the
case of Penny v. Little, 3 Scam. 301. It shows great research; shows
how Illinois adopted the common law, how it is still in force, and
then proceeds to show that a landlord has a right to distrain for
rent where the rent is due and no power is contained in the lease,
the same being authorized by the common law. This is the lead-
ing case upon this subject in this State and has been often cited in
this and other States. His name and fame are indubitably linked
with that of his great rival, Lincoln, like that of Pitt and Fox.
History owes to him this attestation: that in an hour of peril,
when this Government was threatened with overthrow by the most
gigantic conspiracy which the world ever saw, he cast to the winds
every consideration except his country. He declared that there
were but two parties left, namely patriots and traitors, andheunhes-
102 CONSTITUTIONAL HISTORY OF ILLINOIS.
itatingly ranged himself on the side of his country and with his
dying breath besought the people to stand by the Government. He
was possessed of genius of a very high order, of strong passions, of
quick sensibility, of magnetic power and vehement enthusiasm which
in a good cause could carry everything before him.
All men and all parties have united in decreeing to him post-
humous honors although he was gravely criticized while living. It
Lincoln was the great representative of the people in their contest
for liberty and acted as its guardian, Douglas acted as the great
commoner and steadying power of the State when the crisis came.
If he was forced into the position that he final!} 7 assumed, it was
not unnatural, and the language that he made use of was not the
cant of patriotism. He died suddenly amid the fiery paroxysms
of malcontents, some of whom thought that he should have still
held out in his opposition to his great rival; out time has decreed
that Lincoln and Douglas occupied co-ordinate positions in an un-
divided empire, and while posterity takes note of his errors it
deliberately announces that among the eminent men of this gen-
eration scarcely one has left a more stainless and a more splendid
At the same session, when the Reform Bill was passed, and as a
reward for unexampled services to the party while occupying the
bench, Samuel McRoberts was nominated and elected United States
Senator. He was known at that time, and ever will be known, as
the maligner and oppressor of Governor Coles, before whom a part
of the litigation took place relating to penalties incurred for bring-
ing slaves into the State and liberating them here.
The violent and unjustifiable attacks which at this period were
made upon the judiciary, were disgraceful to all those engaged in it,
and will always be regarded as a dark shadow cast over our judicial
annals. The part which Judge Theophilus W. Smith took in this
matter is certainly entirely inexcusable and he may be regarded as one
of the arch conspirators against his brethren on the bench and an
aider and abetter of those off the bench, to degrade the majority
of judges composing the highest tribunal in the land, and among
whom may be reckoned some who were the purest and most upright
and conscientious men that ever lived. But decency and common
sense finally triumphed.
CONSTITUTIONAL CONVENTION OF 1847. 103
"And sovereign law the States collected will
O'er thrones and globes elate,
Sits empress-crowning good, repressing ill,
Smit by her sacred frown
The fiend, Discretion, like a vapor sinks,
And e'en the all dazzling crown
Hides his faint rays and at her bidding shrinks."
The Constitutional Convention of 1847.
rpWENTY-FIVE years after the Constitution of 1818 had been
-L adopted, a general movement was started for calling a conven-
tion "to alter, amend and revise" that instrument. It was claimed
that it was not to be a party measure at all, but in the sequel, both
parties, whigs and democrats, nominated delegates upon strictly
party lines, with the exception of Morgan county. The special
election for delegates was fixed for the third Monday of April,
1847, and the convention was to meet in Springfield, on the first
Monday of June following.
Morgan county was entitled to four delegates, and there, by
an agreement of parties, Judge Samuel D. Lockwood, William
Thomas, James Dunlap and Newton Cloud were elected. This
circumstance was of such an unusual and extraordinary character,
politics having been carried into every election of every sort, char-
acter and kind, from the formation of the State down, that it gave
these delegates, aside from their merits as men, a high rank at once.
Newton Cloud was elected president of the convention, and the
others assigned to prominent positions, Judge Lockwood being
chairman of the executive committee.
There were many men in that convention of great ability,
some of whom afterward acquired a national reputation, among
whom may be mentioned Judge David Davis, John M. Palmer,
Stephen T. Logan, and others. The names of the delegates are
The proceedings were reported for the public press, in part by
the late James Sheahau of Chicago, the well known newspaper
104 CONSTITUTIONAL HISTOBY OF ILLINOIS.
writer who came on from Washington for that purpose, and from
him we learned that every question was discussed from the institu-
tion of human governments and the birth of republics down to the
last ward caucus. The chief topics, however, next to State sov-
ereignty and National union, which engaged the attention of that
body, was the appointing power, the re-organization of the judicial
department limiting the right of suffrage to citizenship, repudia-
tion of the State debt and tax titles.
When the constitutional convention met in 1847, the financial
condition of the State was at a very low ebb. The interest on the
State debt was greatly in arrear. The State banks had gone down
with a crash, and bankruptcy had overtaken many of the best men
in the State, and Illinois was charged with repudiation and was in
great danger of becoming " a stench in the nostrils of the civilized
world." The governor of the State said : " The people at home
began to wake up in terror; the people abroad who wished to settle in
anew country avoided Illinois as they would pestilence and famine;
and there was great danger that the future emigrants would be men
who, having no regard for their own characters, would also have
none for that of the State where they might live. The terrors of
high taxation were before all eyes, botii at home and abroad. Every
one at home wanted to sell his property and move away, and but
few, either at home or abroad, wanted to purchase. The impossi-
bility of selling kept us from losing population, and the fear of
disgrace or high taxes prevented us from gaining materially."
After a considerable discussion and great opposition the follow-
ing article was introduced into the convention : " There shall be
annually assessed and collected a tax of two mills upon each dollar's
worth of taxable property to be applied as follows, to wit : The
fund so created shall be kept separate and shall annually, on the
first day of January, be apportioned and paid over pro rata upon
all such State indebtedness, other than the canal and school indebt-
edness, as may, for that purpose, be presented by the holders of the
same to be entered as credits upon and to that extent, in extinguish-
ment of the principal of that indebtedness." This was a very wise
measure but strange to say, so bitterly was it fought that it had to
be submitted to the people as a separate article and was only adopted
by a vote of 42,017 to 30,586, whereas it should have been unani-
It was a great reform measure, and was, we believe, originally
CONSTITUTIONAL CONVENTION OF 1847. 105
d by Governor Ford, and was advocated with all his power
and wisdom. The next great measure was that relating to tax
titles, which was introduced by Judge Lockwood, and appears in
full in Section 4, Article 9 of the Constitution. Before this time, the
onus proba ndi of showing irregularities in the proceedings leading
up to the issuing of a tax deed rested upon the owner, and the
deed was prima facie evidence that the land was subject to taxa-
tion, that the taxes were unpaid, that the lands were unredeemed,
that it had been legally advertised, that it was sold for taxes, that
the grantee was the purchaser, and that the sale was conducted in
the manner required by law. It was possible for a man to lose
title to his land, although residing on it and having paid the taxes.
The next thing that the convention did was to wipe out com-
pletely and entirely the provision in the Constitution of 1818 relat-
ing to the Council of Revision. That was especially odious, and
was hated and reviled and denounced without stint or measure.
But much can be said in its favor, and such a mode of revision of
the laws, before going into effect, seems to be based upon consid-
erations of the highest wisdom, and in any State where the great-
est perfection is sought after and desired, ought not to be objected
to. In a country, however, where every man takes rank with
Solon and Lycurgus, there can be but few restraints imposed upon
a "fierce democracie," and even the veto power, upon hasty legisla-
tion, has often been declared odious and undemocratic.
Our legislation seems to proceed upon the theory of rectifying
present defects and providing for present necessities, no matter how
the same may be brought about, nor how it may affect the future
condition of the people, nor what the results may be. If such laws
are ever submitted to the Supreme Court for construction, after
being put in force, and the various conflicting provisions are weighed
and compared, the decision arrived at is based upon an equation of
errors, and they soon become obsolete and of no force and effect.
The only consolation about the whole matter is, that the Supreme
Court of the State does, in spite of everything, constitute a stand-
ing committee of revision, and first and last passes upon almost
every law that is enacted.
There is one thing, we think, in connection with the Constitution
of 1847, not generally known, and which is particularly referred to
in Coffin's biography of Judge Lockwood, and that is this: the
106 CONSTITUTIONAL HISTORY OF ILLINOIS.
manner in which God is recognized in the Constitution. It will be
recollected that the Covenanters had in 1818 petitioned to have
some mention of the Supreme Being made in the Constitution, but
their petition was rejected and they opposed its adoption with all
their might and main. Judge Lockwood, knowing this fact, wrote
out, and on motion of William Thomas, the colleague of Lockwood,
the preamble was amended as follows: " We, the people of the
State of Illinois, grateful to Almighty God for the civil, political
and religious liberty which He has so long permitted us to enjoy,
and looking to him for a blessing upon our endeavors to secure and
transmit the same unimpaired to succeeding generations, in order
to form a more perfect government, establish justice, insure domes-
tic tranquillity, provide for the common defense, promote the gen-
eral welfare and to secure the blessings of liberty to ourselves and
our posterity, do ordain and establish this Constitution for the
State of Illinois." And there it remains as a part of the organic
law to this day.
The Constitution which was then framed was a great improve-
ment over that of 1818, but proved to be subject to abuse in many
ways notably that of special legislation and the granting of private
charters, which encouraged the greed of politicians and others to
such an extent as to almost absorb the time and attention of the
members, and to such an extent as to sacrifice all public interests.
It also fixed irrevocably in the Constitution itself the salaries of all
the officers of the government, which, in a few years, proved a
great evil, because, with the change of the times and the increased
cost of living, the salaries fixed in the Constitution were wholly
inadequate to pay officers for their services. The judicial system
proved inadequate, and, as a matter of fact, the State increased in
population so fast, and the development of the various complicated
interests was so rapid, and there were so many things which came
to pass that nobody anticipated or thought of, that the Constitution
became almost obsolete. The people had outgrown it, and it was
so defective in so many particulars that a new constitutional con-
vention became imperative.
This convention numbered among its members many men of
great experience and of the highest integrity, as will be seen by
referring to the list of the same hereto appended; they served their
country long and well, but very few are now left to tell the tale.
CONSTITUTIONAL CONVENTION OF 1847. 107
CONVENTION OF 1847.
Adams County William Laughlin, Wm. B. Powers, Jacob M. Nichols.
Adams and Highland Counties Archibald Williams.
Alexander and Pulaski Counties Martin Atherton.
Bond County Michael G. Dale.
Boone County Daniel H. Whitney.
Brown County James W. Singleton.
Brown and Schuyler Counties James Brockton, Alexander McHatton.
Bureau County Simon Kinney.
Calhoun and Jersey Counties William Bosbyshell.
Carroll and Ogle Counties Garner Moffet.
Cass County HenryJF. Dummer.
Campaign and Vermillion Counties Thompson R. Webber.
Christian and Shelby Counties D. D. Shu in way.
Clark County William Tutt, Justin Harlan.
Clark, Edgar and Coles Counties Uri Manly.
Clinton County Benjamin Bond.
Coles County Thomas A. Marshall, Thomas Trower.
Cook County Patrick Ballingall, Francis C. Sherman, Reuben E. Heacock,
E. F. Colby.
Crawford County Nelson Hawley.
Cumberland and Effingham Counties William H. Blakely.
DeKalb County George H. Hill.
DeWitt County George B. Lemon.
DuPage County Jeduthan Hatch.
DuPage and Will Counties Samuel Anderson.
Edgar County William Shields and George W. Rives.
Edwards and Wayne Counties Alvin R. Kenner.
Fayette County John W. Edmonson and Joseph T. Eccles.
Franklin County John W. Akin.
Fulton County David Markley, Hezekiah M. Wead, Isaac Linley, George
Gallatin County Albert G. Caldwell, Jacob Smith.
Greene County Franklin Witt, L. E. Worcester, D. M. Woodson.
Grundy and La Salle Counties George W. Armstrong.
Hancock County Thomas C. Sharpe, George S. Moore, Robert Miller, Thomas
Harding and Gallatin Counties Andrew McCallen.
Henderson County Gilbert Turnbull.
Henry and Knox Counties Joshua Harper.
Highland County Lewis J. Simpson.
Iroquois and Will Counties Jesse 0. Norton.
Jackson County Alexander M. Jenkins.
Jasper and Crawford Counties Richard G. Morris.
Jefferson County Franklin S. Casey.
Jefferson, Marion and Franklin Counties Zadok Casey, Walter B. Scales.
Jersey County A. R. Knapp.
Jo. Daviess County Thompson Campbell, W. B. Green, 0. C. Pratt.
Johnson County John Oliver.
108 CONSTITUTIONAL felSTORY OF ILLINOIS.
Kane County Alfred Churchill, Augustus Adams, Thomas Judd.
Kendall County John West Mason.
Knox County Curtis K. Harvey, James Knox.
Lake County Horace Butler, Hulbut Swan.
La Salle County William Stadden, Abraham Hoes.
Lawrence County John Mieure.
Lee County John Dement.
Livingston and McLean Counties Samuel Lander.
Logan County James Tuttle.
McLean County David Davis.
Mason County F. S. D. Marshall.
Macoupin County James Graham, John M. Palmer. ]
McDonough County James M. Campbell.
McDonough and Warren Counties John Huston.
McHenry County John Sibley, Peter W. Deitz.
Madison County Cyrus Edwards, E. M. West, Benaiah Robinson, George, T.
Marshall and Stark Counties Henry D. Palmer.
Marion County George A. Pace.
Macon and Piatt Counties Edward 0. Smith.
Massac County Thomas G. C. Davis.
Menard County Benjamin F. Northcott.
Mercer County Frederick Frick.
Montgomery County Hiram Rouutree.
Montgomery and Bond Counties James M. Davis.
Moultrie and Shelby Counties Anthony Thornton.
Morgan County Newton Cloud, James Dunlap, William Thomas.
Monroe County James A. James, John D. Whiteside.
Ogle County D. J. Pinckney.
Perry County H. B. Jones.
Perry, Washington and Clinton Counties John Grain.
Peoria County William W. Thompson, Lincoln B. Knowlton.
Peoria and Fulton Counties Onslow Peters.
Pike County William R. Archer, Harvey Dunn, William A. Grimsbaw.
Pope County William Sim.
Putnam County Oaks Turner.
Randolph County Ezekiel W. Robbins, Richard B. Servant
Richland County Alfred Kitchell.
Rock Island County John W. Spencer, John Dawaon.
Sangamon County James H. Matheny, Ninian W. Edwards, Stephen T.
Scott County N. M. Knapp, Daniel Dinsmore.
Schuyler County William A. Minshall.
Shelby County Edward Evey.
St. Clair County William W. Roman, Wm. C. Kinney, John McCully, George
Stephenson County Seth B. Far well, Thomas B. Carter.
Tazewell County William H. Holmes.
Union County John Canady, John W. Vance.
CONSTITUTIONAL CONVENTION OF 1862. 100
Wabash Count}- Charles H. Constable.
Warren County Abner C. Harding.
Washington County Zenos H. Vernor.
Wayne County James M. Hogue.
Whiteside County Aaron C. Jackson.
White County S. Snowden Hayes, Daniel Hay.
Woodford County Samuel J. Cross.
Winnebago County Selden M. Church, Robert J. Cross.
Williamson County John T. Louden.
Williamson, Franklin and Jackson Counties Willis Allen.
Will County Hugh Henderson, William McClure.
Constitutional Convention of 1862.
years after the adoption of the Constitution of 1848
-L another convention was called " to revise, alter and amend "
that, but as its work was not indorsed by the people, we shall not
enter very much into details concerning it. It was termed a " High
Rolling Convention," and assumed such powers that it soon disgusted
the people and brought its work into disrepute.
It spent a great deal of time over the question whether the mem-
bers should take an oath to support the Constitution, and frittered
away much valuable time in the discussion of the question whether
it could pass ordinances whether it could legislate appropriate
money out of the public treasury and indulged in a vast amount
of buncombe and wearisome platitudes involving the policy of the
war, and insisting that instead of the same being conducted accord-
ing to Hardee's tactics, Generals Scott's, Halleck's or Grant's tactics
it should be conducted according to the Constitution. Many had
never heard of the war powers of the Constitution and were greatly
surprised to find that war meant war, and that "unconditional sur-
render" was a very impolite way of treating rebels in arms, who
were endeavoring to overthrow the government. In short, the use
of gunpowder was very offensive and the din of battle greatly inter-
fered with profound thought and deep meditation.
But there is one thing which it is well to remember and that is
this: "If there be any truth by the universal experience of
nations, it is this, that to carry the spirit of peace into war is a
110 CONSTITUTIONAL HISTORY otf ILLINOIS.
weak and cruel policy. The time of negotiation is the time for
deliberation and delay. But when an extreme case calls for that
remedy, which is in its own nature most violent, and which in
such cases is a remedy only because it is violent, it is idle to think
of mitigating and diluting. Languid war can do nothing which
negotiation or submission will not do better, and to act on any
other principle is not to save blood and money, but to squander them."
At this period there were many who were in favor of languid
war, but the people generally were not. Time proved that the
science of politics was incompatible with the science of war, and
that those who were great in the forum and on the hustings, were
powerless before belching batteries and the shot and shell from
parks of artillery.
Politics and partisan feelings followed us from the field of poli-
tics to the hall of our assemblage and marred if they did not ruin
the objects and purposes of our deliberations. The mouth disease
was prevalent and in many instances proved fatal.
The majority of the delegates to the Illinois Convention of
1862 affirmed in substance that the act of the General Assembly
under and by virtue of which it was convened, was no longer bind-
ing upon the convention after we had assembled and organized.
It assumed and claimed all governmental powers, and while it
proceeded on that theory, as one witty member said on its adjourn-
ment, " it has still left us in doubt when the functions of a constitu-
tional convention ends, and when revolution begins."
The time at which we convened was not propitious. The war
was then at its height, and every member was deeply interested in
it. There was marching and counter-marching throughout the land.
There were camps of recruits, camps of instruction forming every-
where, and the railroads were loaded with soldiers hastening to the
front. The great campaign in the West and in the Mississippi
valley had been in progress for some time, and Grant had ascended
the Tennessee, and had commenced his march on Forts Henry and
"We had members who had volunteered, and one at least left the
convention to take charge of his company, and arrived in time to
take part in the storming of the forts. I recollect at one time our
convention suspended business and flocked to the windows to see
Col. ".Robert Ingersoll inarch out of Springfield at the head of the
12th Illinois Cavalry.
CONSTiTtJTIOftAL CONVENTION OF 1862. Ill
Grant was charged with great rudeness by General Buckner, his
former classmate at West Point, when in response to a communica-
tion asking for delay, he res ponded with the laconic reply "Uncondi-
tional surrender ; we propose to move immediately upon your works."
He moved, and General Buckner moved, and the next thing that
we knew was the arrival of some ten thousand prisoners in our
midst, "clad in their Joseph coat, of many a dye." Many were
thinly clad, with straw hats on, sick, sore and diseased, sad at heart,
and were marched to temporary cantonments and entered upon a
new life as prisoners of war in camps a short distance out of Spring-
field. Train load after train load arrived in quick succession, and
United States soldiers swarmed everywhere. Many prisoners were
afterward transferred to Chicago, and many died of disease, of
homesickness and exposure. The minds of men were naturally
more absorbed with the progress of the war, than in altering, amend-
ing, revising or forming a new constitution.
The policy of the war had been challenged long before the elec-
tion of delegates, and when the convention assembled, the majority
were overwhelmingly against the republican party, and partisan pro-
clivities soon became manifest.
The convention was composed of seventy-five delegates, and
numbered among its members many men of distinction, as will be
seen by reference to the list of delegates hereto attached. Some
afterward attained national renown. One at least now tills the
next highest office in the republic, the office of Chief Justice of
the United States. There was Benjamin Edwards, the son of
the great Ninian Edwards, the first governor of the Illinois
Territory. There was John Dement, one of the early pioneers,
"William J. Allen, now United States District Judge, George "Wall,
now on the Appellate bench in this district, each of whom were
afterward members of the convention of 1869-1870. There was
also ex-Governor French, Anthony Thornton, O. B. Ficklin, Judge
Pur,)le, and the gifted orator Joel Manning, from Peoria, General
Orme, Porter Sheldon, afterward a member of Congress, E. P.
Ferry, now Governor of the State of Washington, and one of the
early governors of the Territory, and many others too numerous to
mention. My colleagues were Melville W. Fuller, now Chief Jus-
tice of the United States Supreme Court, John Wentworth and
John H. Muhlke. Hon. William H. Hacker was elected president
of the convention, and Hon. William M. Springer, commonly known
CONSTITUTIONAL HISTORY OF ILLINOIS.
at that time as "Bill Springer," was elected clerk. He has for
many years been engaged in doing missionary work at Washington
as a member of the House of Representatives. The convention
was lively and at times boisterous. We might as well have under-
taken to form a constitution on the battlefield.
There were many members who had become infused with the
doctrines of State sovereignty and the omnipotence of the conven-
tion and it went to excesses. It claimed to have all the powers
of the people if they were assembled together and were bodily
present, and were acting in their original and primary capacity. It
was at a time when a great deal was said in the newspapers about
ordinances, and that was a term which was well known throughout
the South. Ordinances were made use of then to accomplish
secession, and they were odious.
Our people did not like the nomenclature and did not like their
purpose, and denounced them without stint or measure. Notwith-
standing this, ordinances of one kind and another were introduced
and passed, and the people began to find fault, and the soldier ele-
ment greatly excited. It was rumored that some of the leading
men in the convention were "Knights of the Golden Circle," and
were hostile to the government.
This feeling of hostility reached its climax when, on the arrival
of news of the capture of Fort Henry, we introduced some high
sounding, yet patriotic resolutions, rejoicing over the great victory
which had been achieved by our soldiers over " the rebels and
traitors," and which, instead of being adopted by a rising vote, as we
demanded, were referred to a select committee, and after some delay
were reported back shorn of all their beauty and symmetry cold and
lifeless as if they had been subjected to a refrigerating process. This
aroused the people greatly, and responses soon came from the army
and Illinois soldiers in the field, and the usefulness of the convention
was at an end. It was foredoomed, 'and several times the minority
threatened to retire in a body.
It was at this juncture that Mr. Manning, of Peoria, on the fall
of Fort Donaldson, in a paroxysm of patriotic zeal, introduced, and
the convention passed, an ordinance commencing: "Be it ordained
by the People of the State of Illinois, represented and assembled in
constitutional convention, That the sum of five hundred thousand
dollars, or so much thereof as may be necessary, be, and the same is
hereby appropriated out of the treasury of the State of Illinois, for
CONSTITUTIONAL CONVENTION OF 1862. 113
the exclusive purpose of relieving the wants and sufferings of the
brave sons of Illinois who have been or may be wounded in the
battles fought by them and their brothers in the defense of the
Union and Constitution." Sections two and three authorized the
issue by the governor, auditor and treasurer of Illinois, of State
bonds for that amount, and provided for the disbursement of the
money by those officers, jointly, with a committee to be appointed
by the convention.
There never was- a more praiseworthy object; but as the ordi-
nance was introduced, as all who were members of that convention
know, as a bluff, and to silence all hostile criticisms of the action of
those who were in the majority, it is needless to say that it never
amounted to anything; but it does illustrate most clearly the pre-
tensions of those who held to the doctrine that the people of the
State of Illinois were not only "represented" there on that day, but
were actually "assembled in constitutional convention," and could
legislate to any extent and on any subject, precisely as if every
individual voter were bodily present and then and there voting.
When it was perceived that the work of the convention was
being so severely criticised, a reaction took place among the "high
rollers," and a partial restoration of good feeling took place, and a
great effort was then made to frame a Constitution that would be
acceptable to the people, and if it had not been for the hostile
feelings which had been so injudiciously engendered, the Constitu-
tion would have been adopted. As finally prepared, it was really a
good Constitution, and a great improvement over .the then existing
Constitution, but nothing would suffice. It was, on a popular vote,
overwhelmingly defeated, and matters left in their condition until
peace was restored, and all national issues had been settled by the
dread arbitrament of war.
Many of the discussions which took place were characterized
by great ability, but the two speeches which we recollect with great
distinctness, and which were probably the two ablest speeches,
all things considered, made upon the floor of the House, were those
by Melville W. Fuller, now chief justice, and that of John Went-
worth, on the death of Stephen A. Douglas. Judge Douglas had
died some months before, and this was the first deliberative body
which had assembled in the State after his death; and very early in
the session Mr. Fuller had introduced a resolution calling for the
appointment of a special committee to report suitable resolutions in
114 CONSTITUTIONAL HISTORY OF ILLINOIS.
regard to the same, and was, of course, made chairman of the com-
mittee; on the report coming in at a fixed day, some weeks after-
ward, the convention was given up to a consideration of the same
and to speech-making. Mr. Fuller had made the most thorough
preparation for the occasion, and his effort was not disappointing.
It was a master-piece, and gave him almost a national reputation.
Mr. Wentworth's speech was of a somewhat different character
from that of Fuller's, and abounded in reminiscences of Douglas
and his contests for recognition in Illinois, his great contest for the
House of Representatives with John T. Stuart, his opposition to
Buchanan, and closed with a magnificent tribute to his patriotism, his
honesty and the position that he would assume in the future annals
of this State. Mr. Wentworth was on this occasion at his best and
carried all before him.
No finer tributes were ever paid to the memory of Douglas
than those two speeches, and we have often wondered that they
were not resurrected and published.
And here we would say, as many maybe interested in knowing,
that Mr. Fuller, while gomg with his party on party questions, was
not a " high roller" in the convention, but was most eminently fair
and considerate in everything. He was always a gentleman and was
distinguished as a scholar. The abilities that he then displayed
were a sure promise of what he afterward became.
THE NAMES OF THE DELEGATES TO THE CONSTITUTIONAL CONVENTION
OF JANUARY 7, 1862.
Alexander. Pulaski and Union Counties William A. Hacker.
Pope, Hardin and Massac Counties George W. Waters.
Williamson and Johnson William J. Allen.
Gal latin and Saline Counties Milton Bartley.
Franklin and Jackson Counties Andrew D. Duff.
Randolph County Daniel Reiley. I
Washington and Perry Counties George W. Wall.
Jefferson, Marion and Hamilton Counties H. K. S. Omelreny, T. B. Tanner.
Wabash and White Counties Thomas W. Stone.
Wayne and Edwards Counties R. P. Hanna.
Monroe County Thomas W. Morgan.
St. Clair County Augustus C. French, James B. Underwood.
Clinton and Bond Counties Samuel Stevenson.
Madison County Solomon Koepfli.
Fayette and Em'ngham Counties Isaac L. Leith.
Richland, Clay and Jasper Counties James H. Parker.
Lawrence and Crawford Counties Harmon Alexander.
Cumberland and Alexander Counties Anthony Thornton.
CONSTITUTIONAL CONVENTION OF 1862. 115
Montgomery and Christian Counties Horatio M. Vandeveer.
Macoupin County Lewis Solomon.
Greene County John M. Woodson.
Edgar County James A. Eades.
Coles, Moultrie and Douglas Counties Orlando B. Ficklin.
Sungamon County Benjamin S. Edwards, James D. Smith.
Morgan and Scott Counties Joseph Morton, Albert G. Burr.
Pike and Brown Counties Alexander Starne, Archibald Glenn.
Adams County James W. Singleton, Austin Brooks.
Schuyler County John P. Richmond.
Hancock County Milton M. Morrill.
McDonough County Joseph C. Thompson.
Fulton County Lewis W. Ross, John G. Graham.
Cass and Minard Counties Thompson W. McNeeley.
Logan and Mason Counties E. L. Austin.
Macon. Piatt, DeVVitt and Champaign Counties T. R. Webber.
Vermillion and Ford Counties Elias S. Terry.
McLean County William W. Orme.
Tazewell County Robert B. M. Wilson.
Henderson and Warren Counties Jonathan-Simpson.
Peoria County Julius Manning.
Stark County Norman H. Purple.
Marshall, Woodford and Putnam Counties John Burn?.
La Salle, Livingston and Grundy Counties Alexander Campbell, Perry A.
Kendall County Thomas Finnie.
Will, DuPage, Kankakee and Iroquois Counties Francis Goodspeed, J. W.
Paddock, Henry C. Childs.
Kane and De Kalb Counties Stephen B. Stinson.
Bureau County Robert T. Templeton.
Mercer, Henry and Rock Island Counties George W. Pleasants.
Lee and Whiteside Counties John Dement.
Ogle County Charles Newcomer.
Jo Daviess and Carroll Counties Wellington Weigley, Henry Smith.
Stephenson County Williard P. Naramore.
Winnebago County Porter Sheldon.
Boone and McHenry Counties William M. Jackson, Luther W. Lawrence.
Lake County Elisha P. Terry.
Cook County John Wentworth, Melville W. Fuller, Elliott Anthony, John
Madison County Samuel A. Buckmaster.
Jersey County William A. Allen.
Kane County Adoniram J. Joslyn.
Knox County W. Sheldon Gale.
Constitutional Convention of 1869-70.
SEVEN years after the constitutional convention of 1862 had
adjourned another was called together and entered upon the
task of revising the Constitution which had been in existence since
1848. The war was then over and when the convention assembled,
the delegates were in a chastened mood. The grave lessons which
had been taught us during that long period which preceded and
accompanied the war had not been forgotten, but all entered upon
their duties with the ripe experience of men who had given to the
subject of government the most profound study. Many had taken
part in the war and had at various times been connected with the
government, had tilled high and honorable positions in the National
and State government, had had long experience and great obser-
vation in local affairs, and knew the wants and requirements of
the State thoroughly. "We met in the Hall of the House of Rep-
resentatives of the old State House on Monday, the 13th of Decem-
ber, 1869, at 2 o'clock in the afternoon, and the final adjournment
took place on the 13th of May, 1870.
The delegates were nearly equally divided in politics and an
occurrence happened in regard to the selection of a permanent chair-
man of the convention, very similar to that which took place on
the assembling of the constitutional convention of 1847. The dele-
gates from Cook county had been elected as non- partisans and on
a citizens' ticket. It was composed of Joseph Medill, editor of the
Chicago Tribune, William F. Coolbaugh, S. S. Hayes, Daniel Cam-
eron, Charles Hitchcock and myself. We held the balance of
power and we concluded to assist in the organization of the House
on as nearly a non-partisan basis as possible; and as the State was
overwhelmingly republican, we thought of course that the per-
manent chairmanship should be given to a republican, and as Mr.
Hitchcock was a republican lawyer of great learning and distinc-
tion we selected him. The minor offices were all about equally
divided. A slight skirmish occurred at the opening of the conven-
tion between the opposing forces, as to who should be made
CONSTITUTIONAL CONVENTION OF 1869-70. 117
temporary chairman, which imparted zest to the occasion. The
friends of William Gary, of Jo Daviess, and the friends of
John Dement, of Lee, were both proposed by parties at one
and the same time, and they were both declared elected, both
ascended the platform at the same moment and each "assumed
the chair;" and on motions being made each would alternately
put the motions and sometimes one would declare the same
carried, while the other would declare them lost. The scene was
so ludicrous and laughable that we were kept in an uproar nearly
all the afternoon. On the adjournment of the convention for the
day a consultation was had, and as it was shown that Mr. Dement
had the greatest following, was an old pioneer, and had been in the
constitutional convention of 1847 and 1862, it was decided that it
would be no more than right to confer the honor of temporary pre-
siding officer upon him, and expunge from the record all that had
taken place under the auspices of the double-headed convention.
This was agreed to, and the record of the convention as made up,
shows nothing of the dual order of proceedings, but shows that
Mr. Dement was elected temporary presiding officer by a vote of
45 to 38.
Col. Dement was a most worthy man, had been long connected
with the State, and had been a member as we have said of the
constitutional conventions of 1847 and 1862, and on taking the
chair referred to these things in a most happy manner, as follows:
" Gentlemen of the Convention: Usual as I know it is, for per-
sons indicated as presiding officer for the mere temporary purpose
of organizing a deliberative body to make a response in return to
their friends, I certainly, under the peculiar circumstances by which
I occupy this position, would not act in accordance with my feel-
ings if I did not adopt some form of expressing my thanks to you.
While there has been something that at first appeared as though
unpleasant results might occur, my obligations and gratitude are
eminently increased by what I firmly believe to be a harmonious
conclusion of this little episode, as I shall please to call it. I am
proud of it on account of the kindness and good feeling that I
believe exists between the gentleman who was proposed for the
same position a"s myself, and when I cast my vote for him, there
was something more intended than a mere exchange of courtesies.
I respect the gentleman.
I respect those gentleman that cast their votes in his favor.
118 CONSTITUTIONAL HISTORY OF ILLINOIS.
The compliment that I have received at your hands is greatly
enhanced by the circumstances that have been mentioned already;
nevertheless, without adopting these compliments and sentiments, I
must say that I regard this compliment as high as it is possible for
me to regard any, for the reason that there are so many here who
are my seniors and superiors.
But 1 have another reason to feel grateful to yon.
There are gentlemen here with whom I have been associated in
the conventions of 1847 and 1862, and others here who are my
friends of more than forty years standing.
These circumstances renew to my mind scenes of my life that
are dear to me. They carry me back to that period when I explored
the then wilderness territory of Illinois, and you will allow me,
with yourselves, to express my gratitute, admiration and wonder
at the great change which we experience in comparing these two
periods that, when our State contained probably not over twenty
thousand white people, and the present, when we estimate its popu-
lation by millions. We all recognize the fact that we occupy our
present positions at the call of the great people in the exercise of
the most conservative and liberal spirit, and also the obligations that
these circumstances impose upon us of framing a constitution and
a fundamental law, under the provisions of which the affairs of
our State shall be administered for the prosperity and happiness of
the millions of our general population as well as for their welfare
in the future."
No address was ever conceived in better taste. It was well
received, and coming from one so well known and respected, and
from one who was so nearly connected with the pioneer period of the
State, we all looked upon it as a happy augury and a most graceful
ending to what at first bid fair to be an unpleasant beginning to
Hon. William Gary, who was brought into prominence by the
occurrence above referred to, was a lawyer of prominence, who lived
at Galena and who was elected a delegate from Jo Daviess county.
He afterward became United States District Attorney for Utah
Territory, then removed to Deadwood in Western Dakota, where
he has resided ever since.
The men who composed that convention were many of them
distinguished in their chosen walks long before their fellow citizens
selected them to assist in framing a fundamental law, under which
CONSTITUTIONAL CONVENTION OF 1869-70. 119
our civil institutions have been ennobled, and our beloved com-
monwealth has attained the front rank in the galaxy of States.
There, on that day, the 13th of December, 1869, were assembled
men, venerable in years, who had adorned the Senate of the United
States, men who had been members of Congress, distinguished
jurists who had presided over the highest tribunal within our
borders, men renowned in the marts of commerce, great bankers
and merchants, the editors of great newspapers, leaders of public
opinion, men who were authority in finance, representatives of the
hardy yeomanry and tillers of the soil, who understood well the
interests of the rural population, men who had traveled far and
learned much, men who were masters of experimental science, phy-
sicians of renown, men of great classical attainments, men of native
eloquence, ornaments of the Senate, the pulpit and the bar, and we
will add, no one of whom ever presumed or had the temerity to
believe that he was legislating for all time, or that when he died all
wisdom in framing the laws and the Constitution of the greatest of
our commonwealths, would die with him.
Hon. John M. Palmer was the Republican governor of the State
at that time. His politics were sound, his instincts good, and he was
one of the most intelligent public officers that ever occupied the
He was frequently called upon by members of the convention
for his advice, and so highly was he regarded that we caused to
be published for our use all of his veto messages, which were
quite numerous and very able, among which was his veto message
of the famous Lake Front Bill, which was a master-piece of logic
and one of the most important documents of the kind which ever
emanated from the hand and brain of a lawyer in this State. He
assisted by his advice in the framing of the executive article, and
we will not withhold our tribute of respect and meed of praise,
although strange vagaries may have since passed over his mental
vision, and the lurid flames of the Chicago fire warped his judg-
ment as to what constitutes the true limitations of the police power
of the United States Government and that of the State in attempting
to deal with unforeseen calamities and untold woes in the midst of a
conflagration which had never been equaled since the destruction
of Jerusalem in the days of Titus.
He took a prominent part in putting down the war of the Rebell-
ion was among the first to liberate the slaves while stationed in
120 CONSTITUTIONAL HISTORY OF ILLINOIS.
Kentucky, and was a leader of public opinion. We trust that ho
will some day tell us why he became a democrat. He yet lingers
on the stage of action as powerful as Ajax, as invulnerable as
Achilles, in the full enjoyment of unimpaired energies, gloriously
awaiting his apotheosis.
And right here we fall into reverie. The metamorphosis which
political parties and many of our public men have undergone in
relation to many public questions since the close of the war. is
astonishing to us. It is not unlike that which took place in the times
of George the First, as described by Macaulay in his review of the
life and times of " The Earl of Chatham."
"Dante tells us that he saw in Malebolge, a strange encounter
between a human form and a serpent. The enemies, after cruel
wounds inflicted, stood for a time glaring on each other. A great
cloud surrounded them, and then a wonderful metamorphosis began.
Each creature was transfigured into the likeness of its antagonists.
The serpent's tail divided itself into two legs; the man's legs inter-
twined themselves into a tail. The body of the serpent put forth
arms; the arms of the man shrank into his body. At length the
serpent stood up a man and spoke; the man sank down a serpent
and glided, hissing, away. Something like this was the transforma-
tion which, during the reign of George the First, befell the two
English parties. Each gradually took the shape and color of its
foe, till at length the tory rose up erect, the zealot of freedom, and
the whig crawled and licked the dust at the feet of power."
The lesson which this teaches is one of sad and solemn import,
like the fall of Adam, and is attended with all of its consequences.
We entered upon the discharge of our duties with alacrity, and
held an inquest upon all existing institutions, systems and depart-
ments of the government, and we let nothing escape us. We voted
for every resolution of investigation in regard to all created things,
from the days of the " mound builders " down to the construction
of the Illinois and Michigan Canal. We pondered over all forms of
government and all methods of exercising the elective franchise,
and ended by adopting minority representation, which has, it is
claimed, proved to be a great check on the tyranny of majorities,
and like carrying a lighted lamp into regions heretofore black with
darkness and surrounded with gloom. Hon. Joseph Medill, the
veteran editor of the Chicago Tribune, was the great apostle and
champion of this system of voting, and is to-day its warm defender.
CONSTITUTIONAL CONVENTION OF 1869-70. 121
It seems to have worked very well and has been the means of intro-
ducing those differing in politics to each other, and toning down
in many instances the views of those who could never before see
any good coining forth from Nazareth.
Minority representation was, at the time of its introduction,
a novelty in political science, and was regarded as an experiment,
and of it, it may be said : " There is no more hazardous enterprise
than that of bearing the torch of truth into those dark and infected
recesses in which no light has ever shone."
It was the choice and pleasure of Mr. Medill to penetrate the
noisome vapors, and to brave the terrible explosion. He took
his stand upon the popular parts of his political creed with firmness
and decision, and defended them with, an ability rarely equaled.
He was like Milton when he stood up for divorce and regicide.
He attacked the prevailing system without scruple, and bore down
on it without let or hindrance. " His radiant and beneficent career
resembled the god of light and fertility." He pushed through
minority representation, and there it remains a monument to his
foresight and an educator of the highest order. It astonished all
the Bourbons and old-fashioned Andrew Jackson democrats, and
moss-backed politicians of both parties, and they have never ceased
to wonder at it till the present hour. We do not think that it has
effected all that has been claimed for it, and the system is still open
What the delegates did on that occasion was by no means a
finality, and it may be that in the rapid changes which have taken
place, and are now taking place, much of their work may have been
found useless or impracticable, and should be superseded by other
systems arid other provisions that we thought not of, but we doubt
it. Men who have neither looked into the history of the past, nor
yet troubled themselves to learn what happens year by year, will
often be surprised to find what changes take place in a few months
or years, and it is asserted that neither men nor measures can
remain for an hour unchanged. This statement is partly true and
partly false in its application to fixed governments, and changes in
systems are not as rapid as they are sometimes thought to be. The
members of that convention did the best that they knew how, and
many now sleep from their labors and are at rest. The great
majority of them have long since passed over into the better laud.
122 CONSTITUTIONAL HISTORY OF ILLINOIS*
A few of us still remain, but
"When I remember all
The friends so linked together,
I've seen around me fall,
Like leaves in wintry weather,
I feel like one who treads alone,
Some banquet hall deserted,
Whose lights are fled,
Whose garlands dead,
And all but he departed."
UST OF DELEGATES TO THE CONSTITUTIONAL CONVENTION OF
1869 AND 1870.
First District. Alexander, Pulaski and Union Counties William G. Allen.
Second District. Massac, Pope and Johnson Counties George W. Brown.
Third District. Hardin, Saline and G-allatin Counties W. G. Bowman.
Fourth District. Lawrence and Wabash Counties James M. Sharp.
Fifth District. Franklin and Jefferson Counties William B. Anderson.
Sixth District. Jackson and Williamson Counties James M. Washburn.
Seventh District. Clinton and Washington Counties Harvey P. Buxton.
Eighth District. Monroe, Randolph and Perry Counties J. H. Wilson,
George W. Wall.
Ninth District. Marion County Silas L. Bryan.
Tenth District. Wayne and Hamilton Counties Robert P. Hanna.
Eleventh District. Jasper and Crawford Counties James C. Allen.
Twelfth District. Clay and Richland Counties James P. Robinson.
Thirteenth District. Fayette and Effingham Counties Beverly W. Henry.
Fourteenth District. Edwards and White Counties Charles E. McDowell.
Fifteenth District. $(,. Cia.ii County William H. Snyder, William H.
Sixteenth District. Madison and Bond Counties Charles F. Springer, Henry
Seventeenth District. Clark and Cumberland Counties John Schofield.
Eighteenth District. Shelby County George R. Wendling.
Nineteenth District. Christian and Montgomery Counties Edward Y. Rice.
Twentieth District. Sangamon and Logan Counties Milton Hay, Samuel C.
Twenty-first District. Macoupin County John W. Hankins.
Twenty-second District. Jersey and Calhoun Counties Robert A. King.
Twenty-third District. Green County James W. English.
Twenty-fourth District. Pike and Scott Counties William R. Archer,
Twenty-fifth District. Cass and Brewer Counties William S. Vandeventer.
Twenty-sixth District. Menard and Mason Counties O. H. Wright.
Twenty-seventh District. Morgan County Henry J. Atkins.
Twenty-eighth District. Adams County Orville W. Brown Onias C.
Thirtieth District. Schuyler County Jesse C. Fox.
Thirty-first District. Hancock County David Ellis.
CONSTITUTIONAL CONVENTION OF 1869-70. 123
Thirty-second District. Henderson and Mercer Counties James S. Pooge.
Thirty-third District. Warren County A. G. Kirkpatrick.
Thirty-fourth District. Knox County Alfred M. Craig.
Thirty-fifth District. Fulton County Lewis W. Ross, Samuel P. Cummings.
Thirty-sixth District. Peoria and Stark Counties Henry W. Wells, Miles S.
Thirty-seventh District. Tazewell County Jonathan Merriam.
Thirty-eighth District, McLean and DeWitt Counties Reuben M. Benja-
min, Clifton H. Moore.
Thirty-ninth District. Coles, Douglas, Edgar and Vermillion Counties
John L. Trucker, Henry P. H. Brownwell, Richard B. Sutherland.
Fortieth District. Champaign, Macon, Moultrie and Piatt Counties Charles
Emraerson, Abel Howard.
Forty-first D strict. Kankakee County Original delegate Wm. H. Patter-
son, deceased; to Gil vacancy, John P. Gamble.
Forty-second District. Iroquois and Ford Counties Addison Goodell.
Forty-third District. Will and Grundy Counties Wm. C. Goodhue, W. P.
Forty-fourth District. La Salle and Livingston Counties George S. Eld-
ridge, Joseph Hart, Nathaniel J. Pillsbury.
Forty-fifth District. Bureau, Putnam, Woodford and Marshall Counties S.
D. Whiting, Jas. G. Boyne, Peleg S. Perley.
Forty-sixth District. Henry County George E. Wait.
Forty-seventh District Rock Island County Calvin Truesdale.
Forty-eighth District. Whiteside County James McCoy.
Forty-ninth District. Lee County John Dement.
Fiftieth District. Ogle County Joseph Parker.
Fifty-first District. De Kalb, Boone Counties Westel W. Sedgwick, Jesse
Fifty-second District. Kane and Kendall Counties Charles Wheaton, Henry
Fifty-third District. Lake County Elijah M. Haines.
Fifty-fourth District. McHenry County Lawrence S. Church.
Fifty-fifth District. Winnebago County Robert J. Cross.
Fifty-sixth District. Stephenson County Thomas J. Turner.
Fifty-seventh District. Jo Daviess and Carroll Counties William Gary,
David C. Wagner.
Fifty-eighth District. Du Page County Hiram H. Cody.
Fifty-ninth District. Cook County Joseph Medill, John C. Haines, Snowden
Sixtieth District. Portion of Cook County William C. Coolbaugh, Charles
Sixty-first District. Portion of Cook County Elliott Anthony, Daniel
Is a Constitutional Convention Needed.
BUT death never interrupts the continuity in the life of govern-
ments or nations. And this brings us at length to the consider-
ation of the question which we have been requested to discuss by
the Bar Association of the State, to wit: " The needs of a Constitutional
Convention." The form in which the question is presented would
seem to imply that the matter had been already settled, and that
all we had to do was to enumerate those needs or various topics or
subjects which such a convention would be called upon to deal
with, and then our task would be done. But we are assured that
in propounding the question in this form, it was not intended that
those who should be called upon to discuss the same, should assume
the affirmative side instead of the negative, but that we should be
left free to discuss the same as we see tit, and it is with this under-
standing that we now enter the lists as a " free lance."
The visionaries of this world we are conscious we can not
satisfy, for we have no time and no inclination to meet their vague
and declamatory asseverations. What we are concerned with is the
science of government, and, as a practicable being, what form of
government is best adapted to promote the happiness and secure
the rights and interests of the people upon whom it is to act.
The American forms of government, both National and State,
are in many respects the most intricate and complex of all forms of
government since they deal with all the various concerns and rela-
tions of man, and must perpetually reason from the imperfect expe-
rience of the past for the boundless contingencies of the future.
The most that we can hope to do under such circumstances is to
make nearer and nearer approximations to truth, without our ever
being certain of having arrived at it in a positive form. Govern-
ment, however it may be detined, is nothing more nor less than
the science of adaptations, variable in its elements, dependent upon
circumstances and incapable of a rigid mathematical demonstration.
The men who insist that government is a matter of great sim-
plicity, that its principles are so clear that there ought to be jno
mistake, and that any persons of ordinary skill ought to be able to
iS A CONSTITUTIONAL CONVENTION NEEDED. 125
frame a constitution for any State that will last at least a hundred
years, are so devoid of all sense or reason that they are beyond our
influence and beyond our hopes of salvation this side of the resur-
rection morn. If there is any one thing that has been demonstrated
it is that in proportion as a government is free, the more compli-
cated it is. "Simplicity belongs to those only where one will gov-
erns all, where one mind directs all and all others obey; where few
arrangements are required, because no checks to power are allowed;
where law is not a science, but a mandate to be followed and not to
be discussed; where it is not a rule for permanent action, but a
capricious and arbitrary dictate of the hour."
Burke, who during the last century, discoursed with great force
and vigor in regard to the perfection of government, declared that
whenever men have a right to do everything they want everything,
and that in republics great vigilance is necessary to guard against
the captivations of theories as well as the approaches of more insidious
foes. And this is true, for government may be overthrown by
indirect means as well as direct and open assaults.
' A thousand years scarce serves to form a State,
An hour may lay it in the dust; and when
Can man its shattered splendors renovate,
Recall its virtues back and vanquish Time and Fate."
The greatest engine of moral power known to human affairs is
an organized, prosperous State. All that man in his individual
capacity can do, all that he can effect by his private fraternities, by
his ingenious discoveries and wonders of art, or by his influence
over others is as nothing compared with the collective, perpetu-
ated influence on human affairs and human happiness, of a
well-constituted, powerful commonwealth.
"It blesses generations with its sweet influences; even the
barren earth seems to pour out its fruits under a system where
rights and property are secure, while her fairest gardens are
blighted by despotism."
In this country no State exists or can exist without a govern-
ment organized under a constitution with which the people them-
selves have had something to do in framing and adopting. But
the value of a constitution is relative as well as possible, and no
nation is to perish that a political theory or political abstraction
may strive vainly for realization. The life of a people can not be
sacrificed for a political form or a political dogma. That is
126 CONSTITUTIONAL HISTORY OF ILLINOIS.
admitted. Was the Constitution that we made good or bad?
Have its theories proved delusive and has its system of govern-
ment become impracticable? Have things so changed that it is
now necessary to discard it and make another one that shall
conform to a changed order of things? Wherein, let us inquire,
has this Constitution failed? what are the changes that are
demanded, and in what respect shall it be amended?
Amendments are provided for in the Constitution; are the
changes which are demanded so radical in their character they can
not be met by amendments to be submitted to the people in the
manner provided for in the instrument itself? Is a constitutional
convention necessary, and if so, what are its needs?
The subject of "Needs of a Constitutional Convention" may be
considered either affirmatively or negatively. You may, if you
please, assume that the objections to the present Constitution are so
numerous, so well known and widely admitted as to do nothing more,
as we have said, than enumerate them and thereby avoid all discus-
sion whatever. On the contrary, if no such state of things exists,
if no such assumption can be indulged in, and if everything
alleged is controverted, then the question becomes still more inter-
esting. Let us see.
The Constitution was submitted to the people for adoption or
rejection at an election which was held on the first Saturday in
July, 1870, and was adopted by a most overwhelming vote.
It required a considerable legislation to put the Constitution
into operation, and it was over a year before many of the laws were
passed and went into effect, so that, while the Constitution has been
in force twenty years, the reform measures passed in accordance
with the same, have not been in operation that length of time.
We have, during the period which has intervened, been a some-
what close observer of its workings, and we have yet to learn that
it has proved so unsatisfactory as to require many very radical
amendments, although expressions have reached us now and then to
that effect. Those who have gone to the extreme of declaring that
we have outgrown the Constitution, and have denounced the slow
method of amending the same, have not, we think, bestowed very
much thought upon the subject, and have exercised but very little
discrimination as to whether the reforms that they wish to bring
about, could be effected by the ordinary methods of legislation or
IS A CONSTITUTION At CONVENTION NEEDED. 12?
It is true that two years ago this matter was given some attention
by the General Assembly. A resolution was introduced in favor
of the calling of a convention, but it was defeated by a considerable
majority. At that time the House resolved itself into a committee
of the whole and indulged in general debate. It did not, however,
as it appears from the records, limit the discussion to its own mem-
bers, but invited outsiders to participate. Among those who were
called upon to take part was a distinguished member of the bar, a
resident of the city of Chicago, and a gentleman of large experience
and observation. His remarks were published at the time, and as they
have since been frequently referred to, we will briefly call attention
to them. He reviewed at considerable length the present condition
of things, and gave his experience of the difficulties and delays
which ensued in endeavoring to legislate under the present Consti-
tution; that evils had already developed that he considered of such
magnitude as to be difficult, if not impossible, to be remedied by
ordinary legislation; that corporations seemed to be multiplying to
an alarming extent, and that, too, without check or limit: that the
entire judicial system was defective in its organization and adminis-
tration; that the Supreme Court is behind the age or rather the
needs and the reputation of this State, because of its nomadic char-
acter; that its reputation suffered because of the division of its
work, and the numerous places where it is held, and the small
attention given by the united court to the business that comes
before it a thing which should be corrected in a new Constitution;
that the idea of uniformity of laws, which was one of the chief
characteristics of the Constitution, was impracticable when applied
to counties, towns and townships, which varied so diametrically in
many of their wants and necessities, that the legislation which was
required for Chicago and Cook county was entirely inadequate; that
local self-government was interfered with; that the provisions in
the present Constitution in regard to amendments were too cumber-
some, and were attended witli too much delay; and ended by declar-
ing that " It (the Constitution) is a document, prepared by men who
thought they combined, not only the wisdom of the years in which
they made it, but the wisdom of all the years to come. In a broad
way, in a wide sense, that general suggestion covers my objection
-to the Constitution of 1870." His specific objections were immedi-
ately answered by Mr. Schuwerk and Hon. James Miller, of Stark
county, lately deceased, and who was, we believe, at the time of his
128 CONSTITUTIONAL HISTORY OF ILLINOIS.
death, speaker of the House, and as we believe, fully and completely.
They showed, at the time, that there was not one of the things that
were complained of but what could be remedied by the General
Assembly, or by submitting to the people amendments to the Con-
stitution itself, and that a constitutional convention was entirely
unnecessary. Since that time the matter has been discussed to some
extent in the public press, and two entirely different views have
beeii presented which are quite interesting.
Radicalism and Conservatism.
OK the fifth day of January of this year (1891) there was pub-
lished in one of the leading journals of Chicago, the "Chicago
Herald," an editorial, reiterating the same ideas in substance as those
put forth by Mr. Jewett, in which a direct appeal is made to the
present General Assembly to take steps to call a convention to
revise the Constitution, as the present Constitution had long ago
been outgrown; that it answered its purposes for a time, but it was
hedged about by so many obstacles to the free expression of the
public will, it was so completely fortified against reasonable and
necessary amendment, and it was drawn by men who had such an
overpowering confidence in their own wisdom and ability to regu-
late human government for all time, that it long since ceased to be
useful, and became merely a brake upon the wheels of progress.
The entire article is as follows :
"A CONSTITUTIONAL CONVENTION.
The great need of the State of Illinois at this time is a new Con-
stitution. The instrument of 1870 was long ago outgrown. It
answered its purpose for a time, but it was hedged about by so many
obstacles to the free expression of the public will, it was so com-
pletely fortified against reasonable and necessary amendment, and it
was drawn by men who had such an overpowering confidence in
their own wisdom and ability to regulate human government for all
time, that it long since ceased to be useful, and became merely a
brake upon the wheels of progress.
RADICALISM AND CONSERVATISM. 129
It Las been stated in 'The Herald' that all good citizens should
combine this winter in favor of the submission of one amendment
only one being possible at any general election that would strike out
of that instrument the absurd clause which provides that only one
section of the Constitution can be amended at a time; but a careful
examination of the organic law and due consideration of the needs
of the city and the State will convince most people that to attempt
to whip the Constitution into shape by amendment would be a task
involving years of delay and labors almost superhuman. It would
be better for all concerned to call a constitutional conveniion, and to
prepare an entirely new instrument for submission to the people.
In no other way can our fundamental law be brought down to date
and the egregious mistakes of 1870 be corrected.
When the present Constitution was submitted, Chicago was a
city of 300,000 inhabitants, and not a man in Illinois dreamed that
within a score of years there would be a million and a quarter of
people within its limits. The Constitution is peculiarl oppressive
to this great city, whose needs have outgrown the limitations placed
upon it, but it is also obnoxious to the people of the State at large.
This is true in particular in the matter of revenue. Under existing
law the corporations of the State escape just taxation, and the bur-
dens of government fall with greatest severity upon the poor. The
system of minority representation is also a fraud and a disgrace to
an intelligent people. It makes the effective expression of their
will at the polls a matter of accident, and not infrequently defeats
the very objects that it was ostensibly designed to serve. In almost
every direction it blocks with mandatory prohibition every avenue
of escape from wornout ideas, and conclusively 'bars the way to use-
ful and necessary reforms born of human progress and the growing
demands of city and State. It is antiquated, narrow and cranky,
and it must soon give place to something that will meet the require-
ments of an enterprising people.
The General Assembly, which meets this week, will fail of its
duty if it shall neglect to do its part toward calling a convention
empowered to prepare and submit to the electors of the State a
new organic law."
This was followed by several other articles of a similar character,
to which the " Chicago Tribune " replied by a series of broadsides
in the following vigorous manner:
130 CONSTITUTIONAL HISTORY OF ILLINOIS.
NO NEW CONSTITUTION WANTED.
Again the tax-devourers through their organs and other agen-
cies are howling for a new constitution, and are urging the General
Assembly " to do its part toward calling a convention, to prepare
and submit to the electors of the State a new organic law." The
existing Constitution it appears is not satisfactory to the tax-devour-
ers, the beneficiaries of the mortgage bonds, the lobbyists, special
bill venders, and all the tribe of public plunderers and leeches of
the kind that utilized the old Constitution to the full extent of their
opportunities and their greed. The existing Constitution was not
framed as the organs of the tax-devourers would have it. by " Men
with an overpowering confidence in their own wisdom," but by men
who had the sound judgment to carry out the wishes of the people
who elected them in devising an instrument of fundamental law,
which would prevent the knavish and evil practices of unfaithful
legislators, carried on under the constitution which it replaced the
selling of special franchises and special charters, the taxing and
bonding of the people to an oppressive degree, the granting of
special privileges to corporations without consulting the wishes and
the interests of the people. The existing Constitution was framed
in accordance with the desires of the people of the State, who
wanted protection from corrupt and mercenary members of the
Legislature, and their decision was arrived at after ample discussion
by themselves and the mature deliberation of their freely chosen
representatives, who were all fully aware of the evils they had to
The Constitution of 1870 has admirably fulfilled the purpose of
its adoption by an almost unanimous vote. It has done away with
the unendurable abuses that were practiced in all the Legislatures
prior to 1870.
The present agitation for a new convention and a new Constitu-
tion is intended to help the tax-devourers, while placing responsi-
bility for complicity with their schemes on the people at large.
This plan will not succeed. The honest people of the State outside
of Chicago who are well satisfied with the Constitution and the
honest people of the city who object to more taxation for the bene-
fit of professional tax-eaters will not submit to a new convention in
which the lobbyists, the sharpers, and the Chicago Tammanyites
might, through the agency of political machines, have a majority.
A new convention might be called, but the people would not ratify
RADICALISM AND CONSERVATISM. 131
the product of its deliberations. There is no occasion to incur the
If necessary the provision of the Constitution preventing the
submission of more than one amendment at any one general elec-
tion may be repealed. Thereafter as many amendments as may
seem proper may be submitted, for popular approval or rejection.
If certain provisions of the present fundamental law are objection-
able the people will have the power to rescind or to eliminate
them. But let us not risk the takino- down of all the bars that have
been put up to keep the tax-devourers, special charter venders, and
corporation agents in their proper places.
AGAIN THE WOLFISH HOWL FOK A NEW CONSTITUTION.
A few tax-eaters and certain newspapers, organs of officeholders,
are clamoring for a new Constitution. But the people of the State
of Illinois are making no such demand. They are holding no meet-
ings to ask for a constitutional convention. They are making the
question an issue at no election. The papers which represent them
say nothing on the subject or speak only to denounce the proposi-
tion. Among the grievances of the farmers set forth in their
platforms and resolves the Illinois Constitution finds no place. No
city workingmen have said a word against it.
It is evident that the masses are not troubled by the assertion
that they "tied their hands" when they adopted their present
fundamental law and now " want them unbound." Of course they are
not, for they do not believe it. They know it to be untrue. They
have a better idea of the nature of State Constitutions than certain
editorial writers who set themselves up as guides of the multitude,
though ignorant of the subjects concerning which they give raw
advice. When " The Tribune " sees papers posing as public instruct-
ors, and yet unacquainted with the fundamental principles of the
matters they write about, it confesses that it does feel exasperated
and would be glad to see a law passed which would keep such sheets
from making fools of themselves and perhaps befooling their readers.
The Constitutions of States which have a representative form of
government are not limitations of the powers of, and do not tie the
hands of, the people who make them, but of the representatives,
State and municipal, to whom the people intrust from time to time
legislative functions. If it were certain that Legislatures would be
composed of the wisest and most honest men in the community,
who would never boodle, steal or otherwise abuse their trust, there
13.2 CONSTITUTIONAL HISTORY OF ILLINOIS.
would be no need of a Constitution more than a few lines long.
All that would be necessary would be to iix the number of mem-
bers of the Legislature and their term of office, and to make brief
provision for the executive and judicial departments of the govern-
ment. But the experience of every State has proved that legislators
will abuse their trust, and that they can be bought or influenced to
do things which the people, if they could come together, as in
town-meeting, would never vote to do. Hence, the steady evolu-
tion of American State Constitutions, with their increasing restric-
tions not on the people, but on those agents whom the people,
unable to meet in a primary body, select as their representatives
and administrators to act for them.
Such has been the experience of Illinois. The Constitution of
1818 gave large powers to the Legislature. That body abused them
by plunging headlong into avast wildcat scheme of internal improve-
ments for the bench' t of contractors, which bankrupt the State.
The result was the Constitution of 1848, which stripped the Legis-
lature of its power to abuse its trust and betray the people by run-
ning up a crushing State debt. But the men who made that Con-
stitution were not far-seeing. They did not perceive that it was as
important to protect the minor political divisions of the State from
financial wreck and ruin as it was the State itself. The legislators
elected under the organic law of 184-8 were even more false to their
trust than those chosen under that of 1818. Their professions to
their constituents before election were admirable; their practices
after election, when they got to Springfield, were villainous. They
empowered the city council of Chicago to issue millions of bonds
for all sorts of schemes without consulting the people. They put
it in the power of the speculators of smaller municipalities to fasten
mortgages on the taxpayers to help railroads, rolling mills, grist
mills, coal mines, glass factories, woolen mills, and every variety of
private enterprise. These corrupt members enacted, with the aid
of the lobby, and sold to corporations, charters gran ting them special
privileges and immunities. They were given by the Constitution
authority to pass general laws on the subject of corporations, but
they refused persistently to do it, for it would have deprived them
of the boodle made from the sale of special charters. They ex-
tended the terms of officers without consulting the people, and
increased their fees and salaries, though already too high.
The people stood this misconduct on the part of their agents
RADICALISM AND CONSERVATISM. 133
for many years, for they promised before every election to do
better "the next time." Finally, unable to stand it any longer,
they ordered a convention and adopted the Constitution of 1870,
and limited still further, not their own powers, which are still as
sovereign as they ever were, but those of their representatives.
For their own protection they put a curb not merely on members of
the General Assembly but on county boards, city councils and
township officers. They took from them, large and small, the
power to blanket-mortgage the property of their constituents and
to tax them till they staggered.
The people of Illinois are not dissatisfied with those restrictions
on representatives. To them they owe low taxes and arrest of
debts, and they do not wish to untie the hands of their agents and
let them again plunder at their sweet will in partnership with the
vultures of the lobby. On the contrary, they are, if anything, in
favor of drawing the constitutional strings a little tighter. The
people have not been pleased altogether with the conduct of their
representatives in the General Assembly for the last few years.
They have seen on the part of too many of them a disposition to
abuse the powers they have, and are inclined to think they could be
Thus it will be seen that those who are working for a new "free-
and-easy, go-as-you-please " Constitution are not trying to "untie
the hands of the people" but of their agents. They want to secure
for the latter the same unlimited power of attorney that they had
under the Constitution of 1848. They want to revive the profitable
industry of drawing up charters by the hundred, granting special
franchises, and then lobbying them through the Legislature. They
want to give again to the General Assembly its power to create
monopolies for a price. They hanker after the old days when pub-
lic taxes and public funds could be diverted to private uses. They
wish to see the wealth which has been saved up during twenty years
of low taxes and arrested mortgages handed over to the unchecked
control of the tax-eaters. They want to let down the bars so that
the thieves and speculators may get into the fat pastures they have
been kept out of so long.
This is what they want, but they dare not confess it. The people
see through their little game, and neither in the Legislature nor at
the polls can they get the necessary number of votes. The people
will not untie the hands of their agents, knowing well that the first
134 CONSTITUTIONAL HISTORY OF ILLINOIS.
use they would make of their freedom would be to abuse their
power and to plunder their constituents, as was done under the Con-
stitution of 1848.
The "Chicago Herald" says that it is useless to prepare bills
giving the Chicago justices fixed salaries instead of fees, because
such legislation would be in violation of the Constitution. It says :
"Any legislation touching justices of the peace, police magis-
trates, and constables must apply to the entire State, and it is highly
improbable that while this stupid enactment remains in force an
amendment consistent with it can be devised which will satisfy the
General Assembly, for there is little dissatisfaction throughout the
interior with the working of the justices' law as it stands."
This sweeping assertion is based on that clause of the Constitu-
tion which forbids the Legislature to pass special laws "regulating
the jurisdiction and duties of justices of the peace, police magis-
trates, and constables." But no bill which has been drafted as } 7 et
violates this provision. The pay of justices has nothing to do with
their jurisdiction or duties. The subject of pay of public officers
is touched on elsewhere in the Constitution, where it is provided
that the fees of public officers shall not be increased or diminished
" during the term for which said officers are elected or appointed."
The terms of the present Chicago justices are about expiring.
This is just the time, then, to fix the pay of their successors.
The " Herald " does not seem to be aware of or suppresses
the fact that while the fees of justices of the peace are uniform
throughout the State the Constitution does not require it. The
Legislature is given power to divide the counties of the State into
three classes and fix the fees for county and township officers in
each class. It has done so in the case of many officers. Thus the
fees Cook county constables are permitted to charge are smaller
than those of othei constables throughout the State. As Cook
county is a county of the third class the Legislature can give the
justices of the peace therein just what pay it pleases.
But the power of the General Assembly to give Chicago jus-
tices salaries does not rest on this classification of counties, but on
the fact that these justices are a class by themselves and that the
Legislature is nowhere forbidden to provide for their payment in
a different way from that of other justices. It can not give them
broader or narrower jurisdiction than other justices. It can not
provide that business shall be carried on in their courts in a special
RADICALISM AND CONSERVATISM. 135
way, but when it is their payment which is concerned the discre-
tion of the Legislature is unlimited except that there must be no
change during a man's term of office.
All this is so simple, so plain, that the " Herald " must know it.
But for some reason that paper is dissatisfied with the present Con-
stitution and wants a convention called to frame a new one. It
will not accept the suggestion of the " The Tribune " that provis-
ion be made for the submission of many amendments at the same
time, instead of but one, as now. It says :
" The Constitution of 1870 is a nuisance to the commonwealth.
It bars the people's way in every direction. It locked all the doors
of progress and reform and put the keys in the pockets of a num-
ber of conceited cranks who fancied that when they got through
tinkering a Constitution the State would cease growing, and we
should live according to the code of rules they had agreed upon.
The time has come for Illinois to break its bonds. The Consti-
tution of 1870 is not worth amending. It must go."
And it has much more to say of the same kind. But there is a
remarkable absence of specific objections to the present organic law.
There is no enumeration of the things which ought to be done, the
doing of which it prevents. The allegation that under it Chicago
justices of the peace can not be paid by salaries is the only definite
complaint yet made. If that were true which it is not it would
not justify a constitutional convention.
There is something suspicious in these vague accusations,' in this
assertion that changes are necessary, without specifying the changes.
Can it be that the change which these gentlemen hanker after but
dare not state, relates to the beneficent provision preventing munici-
palities plunging into unlimited expenditures and wrapping them-
selves in mortgages as in a blanket? For years many have been
trying to let down the bars which have kept the tax-eaters out of
the pasture. They understand perfectly that an amendment repeal
ing the debt-limiting provisions of the Constitution would be
beaten by 200,000 votes, but they hope that if a convention were
called to frame a new Constitution it might be handled so skillfully
as to slip in a clause which could be interpreted so as to give every
municipality the power to borrow as long as it could find lenders.
Unless the "defects "of the present Constitution are stated
more specifically than they have been, it must be assumed that
the wish to repeal it is confined to the tax-grabbers."
Limitations and Restraints are Necessary in all Free
AS indicators of public feeling or public opinion the views here
presented may probably be taken as fairly representing two
theories of State government and two sets of opinions which are
entertained by those differing in politics and in regard to the various
economic questions now agitating the country.
On the one side are found those who resent all interference on
the part of the State with local self-government and who are for
removing all restraints upon legislation in every form, either by the
State or by municipalities, and who are especially indignant at those
who, in framing the Constitution, undertook to set bounds to the
levying and collecting of taxes and the debt power of city councils;
while on the other are ranged those who are of a more conserva-
tive character, and who believe that it is not only judicious for the
people to have some fixed rides in regard to these subjects, but it
corresponds with the most advanced and enlightened views of all
civilized governments, that the people ought in many things to limit
themselves. The experience of our own State has, we think, not
only demonstrated the wisdom of such a course of procedure, but
every other State will substantiate it.
It is necessary to regulate the association of men with each
other to prevent the invasion of their liberties and rights, and to
promote that good which society is willing to do for its members.
There is a class of men who consider it a great hardship that
the Legislature, and counties, cities, villages and all kinds of munici-
pal corporations, are not permitted to do just as they please, and
incur debts to any extent, and for any purpose that speculators and
schemers may devise, but everybody knows that if the people were
not protected from the lawlessness and extravagance of their own
representatives, that they would be ruined, and general insolvency
ensue. It is very easy to cry out against what is termed paternal
governments, against public guardians, and against every form of
restraint on legislation, as an infringement of the liberties of the
LmiTATIOXS AND RESTRAINTS NECESSARY. 137
people. 13ut there never was a voluntary organization of men
associated together to carry on any great enterprise in which each
and every one had an interest, but that they voluntarily agreed to, and
entered into certain contracts and undertakings, and adopted rules
and regulations for their government and guidance. Any other
course would be simply to inaugurate chaos and invite anarchy.
The individuals who compose a State are not all of the same
mind, and in the nature of things can not be ; therefore it is, as all
who have given the subject any study know, that there must be
restraints and limitations in all free governments.
And this is the more necessary when we consider the varied and
diverse character of the people composing the State, and who would,
if left to their own notions, engage, in every conceivable enterprise,
from the establishment and support of a State church down to run-
ning all railroads at State expense, and carrying the people for
As the discussion has proceeded we have observed a consider-
able advance in the positions of those who think that we ought to
have a constitutional convention, and they have grown more bold
and aggressive. The Legislature is now in session, and they demand
that all restrictions on legislation must be removed, and they now
say: "The people want a constitutional convention. The State
urgently demands that relief be had from the rusty shackles of a
code, worthy only of the unprogressive and unintelligent. They
demand the right to make their laws freely, according to changed
conditions. The old Constitution must retire with its ancient
Now it may be that "the State" or the people, are prepared to
eliminate from the present Constitution all restrictions on special
legislation, special charters and special privileges, and return to the
old order of things as they existed under the Constitution of 1848.
If they are ready to do this, we are perfectly willing that they
should indicate it by their votes. The people adopted the present
Constitution, and . they are responsible, of course, for its longer
continuance. If they say, after a full and fair consideration, that
the time has come to change it, to throw it off and strike off all
restraints, "shackles" or "fetters," if you please to call them so, then
we shall be content. It is not a personal matter with those who
framed the Constitution, for most of them are already in their
graves. It is, we repeat, a matter to be determined by the people,
138 CONSTITUTIONAL HISTORY OF ILLINOIS*
in their sober senses, and not by the "high rollers," who are
swinging their hats and crying " hoop la," before the winning post
is reached. If the experience of the past amounts to nothing, then
let its lessons go unheeded.
We stand upon the threshold of the mighty future, and all the
events of the past seem to dwindle in their dimensions and appear
We stand in the midst of events which may result in a catas-
trophe or a revolution. What is in store for us in the near future,
no one can tell. Let us wait and see.
The State of Illinois has during its brief existence of not quite
seventy-three years held four constitutional conventions, and it has
been our fortune, good or bad, to have been a member of two of
them, and on several occasions before, we have heard the charge,
that those who engag'e in the business of framing a constitution
act as if they thought that they possessed all of the wisdom of the
past, the present and the future, and acted as if they thought that
when they died all wisdom would die with them. Now the charge
of having the " big head," for that is what it all amounts to, is a
charge easily made and may be hard to answer, especially if those
who are charged with the offense are arraigned before a tribunal
that they can not attend, and before judges that refuse to heed their
mute appeals. But as it is a charge entirely personal in its
character, we submit that it would be far more prudent on the part
of those making such charges, to husband their resources and
proceed to answer their arguments, rather than ''carp at their
The dervise in the Arabian tale did not hesitate to abandon to
his comrade the camels with their load of jewels and gold, while he
retained the casket of that mysterious juice which enabled him to
behold at a glance all the hidden riches of the universe. Surely it
is no exaggeration to say that no external advantage is to be com-
pared with that purification of the intellectual eye, which gives
us to contemplate the infinite wealth of the mental world, all the
hoarded treasures of its primeval dynasties, all the shapeless ore of
its yet unexplored mines. A constitution maker ought, we have no
doubt, in order to come up to the proper standard, to have the
cunning and discernment of the Arabian dervise, so that nothing
could escape his observation. He ought to be able, not only to dis-
cern " the signs of the times," but to look forward far into the future,
POWER OF A CONSTITUTIONAL CONVENTION. 139
lincl prepare a way for the coming generations, so straight, that a
wayfaring man though a fool may not err therein.
To avoid this charge of arrogating superior wisdom, he must, it
appears, legislate with a halter around his neck, and be prepared
in case of failure to be arraigned before that tribunal of posterity,
where no excuses are tolerated and no errors are condoned.
The impetuous and appalling rush with which the human intel-
lect has moved forward in the last fifty years in the career of truth
and liberty, and in the development of the physical resources of the
country, has been such that leaders of public opinion have, it appears,
become impatient, and cry faster and faster, even though the world
should be endangered by the increased velocity. A constitution
should not, we submit, be made a foot-ball of, or be degraded to that
of an ordinary statute, which may be enacted to-day and repealed
The Power and Scope of a Constitutional Convention.
"/CONSTITUTIONS are in politics what paper money is in com-
V_y merce. They afford great facilities and conveniences. But
we must not attribute to them that value which really belongs to
what they represent. They are not power, but symbols of power,
and will, in an emergency, prove altogether useless, unless the
power for which they stand be forthcoming."
The real power by which the community is governed, is made
up of all the means which all its members possess of giving pleasure
or pain to each other.
The word " Constitution," as employed in modern times, means
a system of government in which the people have some share in
making the laws and a constitutional convention, in American
political grammar, means that special agency which the people
select to transact the business of fundamental legislation, and to
draw up for them, and on their behalf, their organic laws.
This agency is something akin to that of the school of the philoso-
phers or amphictyonic council where only sovereigns are delegates,
140 CONSTITUTIONAL HISTORY OF ILLINOIS.
and where not only the fundamentals of human society are considered,
but where the formation and arrangement of all the functions and
powers of government are defined, marked out and limited. In
its true sense a constitutional convention sustains a close and inti-
mate official relation to the State, and is charged with definite
and not discretionary, indeterminate or unlimited functions. "It
always acts under a commission fora purpose ascertained and limited
by law or custom. Its principal feature as contradistinguished from
the revolutionary convention, is that at every step and movement of
its existence, it is subaltern it is evoked by the side and at the call
of a government pre-existing and intended to survive it for the
purpose of administering to its special needs. It never supplants
the existing organization and never governs." And here we will
remark that, although this agency is as well known in the United
States as almost any other institution connected with the govern-
ment, yet there was scarcely ever a constitutional convention con-
vened, but what its powers and prerogatives were sought to be
amplified and magnified in the strangest manner, and the claim put
forth that whatever it does is done by the people "in their
primary and sovereign capacity," and that it is clothed with an
omnipotence so transcendent and far-reaching that nothing can con-
trol it. This claim was put forth in a most marked manner in
Pennsylvania at an early day, in Massachusetts in 1852, was
advocated in this State in 1862, and in 1869-70, and was the pre-
vailing doctrine in most, if not all, of the Southern States, up to the
time of the war of secession; and acting upon this idea and this
theory, constitutional conventions were made use of as among the
most efficient organizations ever devised to bring about secession,
because upon a simple vote of the majority secession could be
carried, and was carried. To effect it there was needed but a vote
of a few conspirators, sitting as a constitutional convention, pre-
tending to utter the voice of the people and refusing to submit
their ordinances to the test of a popular vote, under the false plea
that neither the theory of the convention system nor the practice
of the fathers made such a submission necessary.
With the close of the war the extreme notions of State sover-
eignty, and the powers inherent in constitutional conventions have,
we trust, passed away, and we would not have referred to it here
if the same theories had not been put forward and adhered to in the
recent constitutional convention held in the State of Mississippi,
1>OWEB OF A CONSTITUTIONAL CONVENTION. 141
and which convention adopted a constitution that it had franitd
without submitting it to a vote of the people.
Theoretically, it seems to he a very simple matter to establish a
perfect government; but practically, it is not so simple. Selfishness,
greed, ignorance and passion are found to be constantly disturbing
forces, and what is simple in theory is difficult in practice. Fortu-
nately the governing genius of the people is equal to almost any
emergency, and whenever a tendency to recklessness and extrava-
gance lias shown itself, the people have stepped forward and either
checked it or put an end to it.
The practical statesman takes cognizance of fixed facts, and is on
his guard against hypocrisy, ignorance, humbugs, incapacity, dis-
honesty, corruption, frauds and defalcations, and no constitution
which opens wide the door for such practices either on the part of
Legislatures, city councils, county commissioners or school boards,
ought to be upheld or tolerated. Constitutions are in these modern
times made by the people, and if they select a few of their fellow-
men to draw them up for them and propose them, then their
responsibility ends; it is the people who adopt them. The aggre-
gate will of the people is usually better than the average intelli-
gence of the individuals composing the people, because they accept
the judgment of men wiser than themselves.
Bad men may deceive, mistakes may be made, but the evil will
be temporary and will be reformed in obedience to the right feeling
of the greater numbers of the people. We do not worship the
Constitution as a fetish or cling to it like the Twelve Tables.
We do not look upon conventions as an earthly providence and
we do not think that a constitution should be looked upon as a
sceptre over a free people in the hands of dead men. The true
office of a constitution is to determine the order but not the course
and destination of the people. "It is not providence nor destiny.
The years and what they bring are withdrawn from the gaze of
conventions as well as of men. They have no more a horoscope to
forecast the future in the lives of nations than of individuals, nor
can they outmaster time, nor wrest the secret from the years.
The Constitution is to provide that the people shall stand together
and march together, but their line of march is hidden from it. The
nation is formed in the changing conditions of history. It must
pass through conflicts which the prescience of no assembly can antic-
ipate and they will not regulate their coming by the action of any
convention, nor conform to its project, nor abide in its provision.
142 CONSTITUTIONAL filSTORY 6P ILLINOIS.
The aim of the Constitution is to leave each generation free to do
its own work, to which it is called, but in the continuity of the nation
and in its normal process, and therein it becomes the assertion of
the unity of law with the realization of the freedom of the nation
in its being in history."
This is, indeed, the teaching of true philosophy, but, like all
general statements, is subject to certain limitations. It does not
contain all the truth, for there should be some stability in our Con-
stitutions or else we will be constantly engaged in the process of
experiment and change, which all students of political science and
the wisest statesmen regard as public calamities akin to revolutions.
The Constitution which provides for its own amendment furnishes
the most ample means for permanence and progress and for setting
aside the inconsistent and incongruous, the vague and the incom-
We see no sense whatever in calling upon the people at the
present time to assemble and rehearse anew the fundamentals of
government, and we do not believe that the people are so dissatis-
fied with the workings of the Constitution as to demand any radical
Constitutional conventions, in our American political grammar
and in our American system of government, belong, as we have
said, to the genus Legislature. The consequence is that they often
contain vast aggregates of ignorance and inexperience, like ordinary
Legislatures, and indulge in immeasurable platitudes and endless
debates over matters long since thoroughly settled in political
science and in the science of government.
No constitutional convention should, in my judgment, ever be
called without selecting in advance a committee of the wisest men
in the State to carefully consider the defects in the existing Consti-
tution which it is proposed to amend, and to point out the remedies,
and provide in advance the changes to be made and the reforms to
be inaugurated; not that what may be proposed should bind any-
body or limit the sphere of the investigations or action of those
called upon to act, but that the convention may have something to act
upon at once, and not waste valuable time by discussing impracticable
and incoherent theories of government. If government is a
science, and if written constitutions are necessary to the well-being
of society, then it is due to the people that they should approximate
as near perfection as the skill of man can make them and the lot
of humanity will allow.
Legislative Provisions in Modern Constitutions.'
THE constitutions which have been framed by the various States
in modern times differ very materially from those that we
meet with in the early days of the republic. The earlier constitu-
tions wore confined to outlining the general structure of the govern-
ment and did not undertake to enact laws and prescribe the condi-
tions under which laws might be made and executed. Now you
can find in them whole statutes, from those regulating freight bills,
warehouse charges and homestead exemptions, down to those for-
bidding the sale of intoxicating liquors and the practice of law.
Some of our modern constitutions are getting to be little bet-
ter than caricatures and are overloaded with legislation, the most
notable instances of which are California and Mississippi. Califor-
nia especially is but very little better than a volume of State
statutes and Mississippi falls but little behind it.
It will compare favorably with the " Svod Zakonof " or collec-
tion of Russian laws of which that part relating to the police alone
contains five thousand sections. The Constitution of the United
States is a model in many respects for all States, because it confines
itself to a clear sketch of fundamentals and leaves as much as pos-
sible to be developed by circumstances. It is this feature of it
which gives it flexibility and leaves so much to be developed by
There is considerable legislation to be found in the Constitution
of 1870; but if any one will take the pains to examine the list of
committees who had in charge the various subjects in that conven-
tion, they will find that it was composed of men of very great
experience in our State affairs, and they declared it was absolutely
necessary to provide the restraints upon the General Assembly in
order to bring about any of the reforms that the people demanded,
and they were inserted for that purpose.
Many of the things which are there enumerated would, ordinarily,
we admit, be absolutely within the jurisdiction of the Legislature,
but what people ever suffered as we have done from special legisla-
tion and special charters and the enactment of private laws and the
grant to individuals of special privileges?
144 CONSTITUTIONAL HISTORY OP ILLINOIS.
Our legis'atures had also from time to time been disgraced by
unseemly struggles between contending political parties over the
organization of the General Assembly. This we provided for. The
forms to be pursued in the style of laws, methods of revision and
enactment of the same, the appropriation and expenditure of public
moneys, prohibiting special legislation upon a number of subjects
which are particularly enumerated and set forth.
This legislative feature extends to counties and the removal of
county seats, homestead exemptions, the organization of banks and
corporations and of -railroads and warehouses, which in these modern
times almost dominate the State itself, and which we deemed it
necessary for the State tb absolutely govern and control.
Men say in answer to all these things that those who framed a
constitution on such a theory, acted as if they considered the people
utterly incapable of self-government, and as if they thought that
they embodied " all of the wisdom of the present and of future gen-
Such remarks betray a most superficial knowledge of the condi-
tion of society and that they have bestowed but very little thought
upon the subject; for, as Daniel Webster once said: " It is a funda
mental rule in the structure of human society, that mankind must
not only limit the powers of their rulers, but must limit them-
selves." No body of any sense undertakes to bind posterity to any-
thing; but human governments do have a continuity, and in order
that they may not degenerate into chaos, or society resolve itself
into its original elements, rules must be provided for cohesion and
continuance, although mankind may rise up to-morrow and over-
throw the same. No government that was ever yet formed pro-
vided for its own dissolution.
An Examination of Some of the Objections Which Are
Urged against the Present Constitution.
~T~ ET us now briefly examine a little more in detail, some of the
- ^ objections which have been urged against the Constitution,
and see if they are sound and reliable and based upon proper found-
ations. "We enter a general denial to each and every one of them,
and call for the proofs.
We plead the general issue. Those who make charges hold the
affirmative and should prove them. And when anybody asserts
that any given thing can not be accomplished under the provisions
of a constitution, it is his duty to show wherein and why it can not
be done, because, as we have already said, in the absence of a
limitation on the Legislature, or a prohibition against doing any
given thing, the Legislature, or as we term it in our Constitution,
"the General Assembly," is as omnipotent as that of the British
Parliament. The narrow constructionists will receive no encour-
agement from the example of Chief Justice Marshall, who
expounded the Constitution with the wisdom of the sage and (he
prescience of the seer. In the case of New York v. Miln, 11 Peters,
139, the Supreme Court of the United States say : " A State has
the same undeniable and unlimited jurisdiction over all persons and
things within its territorial limits as any foreign nation, where that
jurisdiction is not surrendered or restrained by the Constitution of
the United States; that by virtue of this, it is not only the right,
but the bounden and solemn duty of a State to advance the safety,
happiness and prosperity of its people, and to provide for its general
welfare by any and every act of legis'ation which it may deem to
be conducive to these ends, when the power over the particular
subject, or the manner of its exercise, is not surrendered or
restrained by the Constitution and laws of the United States."
The rule, in regard to the construction of the provisions of a
constitution, is very often violated both by courts and lawyers; but
Chief Justice Marshall declared long years ago that the rule was to
construe all such instruments liberally, and as common men would
adjudge the meaning of words used by them in expressing tliein-
146 CONSTITUTIONAL HISTORY OF ILLINOIS.
selves in the ordinary transactions and business of life not technic-
ally, and in such a manner as to defeat the intention of the fram-
ers, which was to be gathered from the instrument itself, and from
the facts and circumstances surrounding them at the time.
When there is no ambiguity in the words themselves and the
intention is plain, then there is no room for construction, for there
is nothing to construe.
A constitution has no inherent power and no abstract quality
to deliver any people from all of their distresses. It is not for the
individual nor for the nation to be saved by any system, however
complex, nor any dogma, however subtle. The Constitution may
become itself only the mark which hides from an age its degeneracy
or as the mausoleum which conceals its decay. But let us treat this
subject fairly. Let us commence with the preamble and trace its
outlines and provisions, article by article and section by section
till the end, and see wherein it falls short of providing a system
adequate to all the wants of the people. It was not drafted by one
man and it was not designed to provide for everything, and in that
respect differs from a statute, completely and entirely. That
inconsistencies may sometimes be found and incongruities maybe
noticed, does not militate against the instrument as a whole, if there
still exists sufficient to furnish adequate remedies for wrongs and
The true scope of a constitution is that of a framework of
government and not a complete and completed structure. All that
is ever required, and all that ever should be presented, is a proper
sketch, skeleton and framework and not a rounded whole. The
fact that the Supreme Court of the State leads a nomadic existence
is due to the Legislature; for the 4th section of the 6th article of the
Constitution expressly provides that "judicial decisions may be
altered or diminished in number and the times and places of hold-
ing said court may be changed by law."
Here the remedy is with the Legislature, and if the change is
not made from three places to one, it is wholly the fault of the
General Assembly. There was a time in the history of this State
when "court days" and "cattle fairs" were great attractions, and
that custom still prevails to a considerable extent, we believe, in
Kentucky; but if this ever did have any application to the Supreme
Court where the great amount of work is performed in retirement
and not in "the show ring," the sooner the custom is dropped the
OBJECTIONS AGAINST THE PRESENT CONSTITUTION. 147
better. The Supreme Court ought to be held like that of the old
Court of Common Pleas in England, " in cerium loco" in one place
and that place the capital. Originally, it does appear that the cider
men and petty chapmen did receive great gains from the annual
recurrence of court days, and the advent of the great dignitaries
that accompanied the judges as in the days of Aula Regis' but that
time is past, and "boarding around" should cease. It is simply
disgraceful that this thing should longer be tolerated, and the sooner
the ancient practice of going in eyre should cease, the better. The
Supreme Court ought to hold its sessions at the capital and
That there should be any inconvenience arising from the ease,
and facilities afforded for obtaining charters of incorporation under
our laws, is a matter wholly within legislative control ; for, instead
of inaugurating the system of dropping a dime into the slot, and
receiving a charter of incorporation for the same, the Legislature
have only to adopt a fee or charge for the same sufficient in amount
to defray the expenses of employing a corps of clerks to register
and record and issue the same, and this abuse would stop. In other
words, no corporate charter should be issued without paying an ade-
quate amount into the public treasury, sufficient to cover every
expense, which should be, on the average, twice what it is to-day.
Then there ought to be appointed by law a public examiner, such
as exists in Minnesota, to examine at any time into the soundnecs of
corporations holding franchises from the State and into all public
accounts of all public officers.
The amount of money which could be realized from fees and
charges for the granting of corporate charters would go far to
relieve the taxpayers from their burdens, and would serve to curtail
the number of the same. Our State is swarming with corporations
of all sorts, characters and kinds, which seem to be almost beyond con-
trol. But it is the fault of the Legislature that it is so, and not the
Constitution of this State. In Pennsylvania, and in many other
States, large sums of money have been and are realized from the
granting of corporate franchises under their laws; but their charges
cover something beyond the cost of the paper and attaching the
State seal to them.
The Administration of the Criminal Law in the State of
ONE of the most necessary and august functions of a govern-
ment is to administer justice and it is impossible to diminish
the authority of justice without taking away from the government
a portion of its strength. The judicial system which has been pro-
vided by the Constitution of this State may be defective and the
administration of the law unsatisfactory, but we submit that the
reason for this must be looked for somewhere else than in the Con-
stitution or the laws themselves. Nisi prius judges have in the
State of Illinois been, by various judicial decisions, dicta and prac-
tices, deprived of almost all the powers that they ever possessed by
the common law, until to-day their position in the trial of a case is
but very little better than that of a moderator in an ordinary
debate. They have become but little better than a nonentity, and
the fault is not in the Constitution, but rests somewhere else, and
entirely outside that instrument. Trace the history of a law suit
in this State, and especially that of a criminal case, and see how and
in what manner it is dealt with by the court of last resort.
After a criminal is tried his case is removed to the Supreme
Court. For what purpose ? To determine the guilt or innocence
of the prisoner at the bar? No. The jury that tried him has already
passed upon that. For error in law ? No, that can not be, for by
the statute of the State of Illinois, it is provided that the jury are
the judges of the law and the facts. What then ? Well, it is to
determine whether the judge that tried him and the prosecuting
officer that prosecuted him are guilty, whether they pursued the
right methods to ascertain the facts. Was the presentation of the
case fair, was there too much severity exhibited by the State's
Attorney in his cross-examination of witnesses, was the jury the
right kind of a jury for the prisoner ? Were counsel for the
defense permitted to examine them at sufficient length to ascertain
whether they had any bias or had right ideas upon the subject of
ADMINISTRATION OF THE CRIMINAL LAW. 149
" reasonable doubt," would they convict upon " doubtful or unsatis-
factory evidence," would they " guess a man into the peniten-
tiary?" Were these questions answered fully and satisfactorily?
"What kind of a closing speech did the State's Attorney make was
it one that aroused the feelings of the jury to the highest pitch or
did he proceed on a low key ?
How many times was the State's Attorney interrupted in his
closing speech by the counsel for the prisoner and why was it that
the court did not rebuke him in language befitting the occasion?
How did the judge behave? Did he make any remarks during
the course of the trial which had the effect to influence the jury?
Was his bearing such as became the time and the occasion ? Were
his rulings fair, and were they according to law " as laid down by
the jury " or by the sages of the law ? Did he place the right
mark on the instructions which the counsel engaged in the case so
kindly and courteously handed him just a moment before the case
closed? Did he make a mistake when he wrote "given" on this
instruction and "refused" on that? That is the important question.
It is true that a prisoner at the bar has no right to resort to legerde-
main in order to clear himself, but it amounts to exactly that and
nothing more. Technical rules may be useful to guide the ignorant
and unsophisticated through the mazes of the criminal law but
they should never be carried so far as to produce results plainly
detrimental to public repose or to a sound administration of the
A constitutional convention may be required to confer upon
judges the power to superintend the impaneling of juries and to
control the trial of persons charged with heinous offenses, for
almost every step that is taken seems to tend to strip them of all
power in this matter. The time has come, we think, in the history
of this country, when some practical rule should be adopted in
regard to the competency of jurors, and that rule is the one that
was provided for in the first Constitution of Massachusetts, as early
as 1783, to wit: A man who commits a crime shall be "tried by
a jury as fair and impartial as the lot of humanity will permit," and
not by saints and angels. To require that jurors shall come to the
investigation of criminal charges with minds entirely unimpressed
by what they had heard in regard to them, or entirely without infor-
mation concerning them, would be in many cases to exclude every
man from the panel who was tit to sit as a juror. With the prets-
150 CONSTITUTIONAL HISTOEY OF ILLINOIS.
ent means of information the facts or rumors concerning an atro-
cious crime are in a very few hours or days, at farthest, spread
before every man of reading and intelligence within the district
from which jurors are to be drawn, and over the whole country, if
the atrocity be especially great. The greater the enormity of the
crime the more complete is the protection afforded a villain from
punishment by a jury. The opinion of Judge Lockwood in the
case of McKinney v. The People, 2 Gil. 548, may be consulted
always with profit.
To plead under the ancient arches of "Westminister Hall, in the
name of the English nobles, for great nations and kings separated
from him by half the world, was to Burke the height of human
glory. There are those who seern to think that if they can appear
in behalf of some ideal monster, that they are justified in resorting
to every species of trickery and chicanery, to overawe witnesses,
browbeat courts, hoodwink juries, and if they can succeed in
obtaining a verdict in their favor, that that is the acme of fame and
human greatness/ If they fail, they call to their aid the court of
last resort and very frequently they do not call in vain.
The whole body of the criminal law is at the present time over-
loaded with technicalities, subtleties, refinements, impracticable and
in many instances absolutely nonsensical rules and rulings, which have
no other tendency than to protect crime and criminals, and thwart
A great criminal backed by money can almost defy the public
and the people, not by the use of it in corrupting courts, but by
resorting to changes of venue, bills of particulars, excepting to
everything under heavens, done or said in court, and out of court,
and then calling upon the court of last resort for their aid and
assistance in construing everything done and said against the court,
prosecuting officer, judge and jury, clerks and bailiffs, and they are
sure to obtain errors enough to reverse the verdict every time.
Substantial justice, which is really the limit of all earthly tribunals,
is wholly ignored, and absolute perfection required or else a crimi-
nal trial is erroneous. Common sense seems to be about the last
thing made use of in reviewing criminal trials, and the guilt or
innocence of the accused wholly ignored or forgotten.
By the law as it exists to-day in the State of Illinois, a person
charged with the commission of a crime can, by resorting to changes
of venue, motions for continuances and other tactics known to the
ADMINISTRATION OF THE CRIMINAL LAW. 151
law, select his judge, fix the time and place for his trial and select
his own jury, if it takes months to do it. Now, this may seem
astonishing to a stranger, but if it is not absolutely true in all cases
it is nearly so.
A nisi prius judge has no discretion left in him according to its
true and legal meaning as known and understood by the common
law, for everything is subject to review from good morning to good
If we have the common law in this State will some one be kind
enough to inform me what it is, and if judges have been abridged
in the exercise of their powers, by whom it was done and by what
means it was accomplished? Able jurists have, in Maryland and
Pennsylvania, investigated this subject and determined to what
extent the common law exists there. But in this State that has not
yet been determined except our Supreme Court have decided that
all Circuit Courts have the same powers and jurisdiction as the
King's Bench, and that the common law exists as it did in Virginia
prior to 1784. In addition to all these things, the statute adopting
the common law is still in force and has never been repealed. Does
it require a constitutional convention to enforce its observance?
is there anything in the genius of our institutions to require
absolute perfection arid no errors?
A prisoner charged with the commission of a crime is entitled
to a fair and impartial trial as fair and impartial as " the lot of
humanity will permit " but nothing further and the great question
should be, is he guilty or innocent and not somebody else.
There was a time in England when the penalty attached to
almost every crime was death, and when every species of technical-
ity and sublety was resorted to to save a criminal, but in this more
liberal and enlightened age, when the administration of the criminal
law has been ameliorated by just and merciful laws, and milder
punishments are awarded for almost every offense, a liberal rule has
obtained, and the last traces of lawyers' superstitions have been swept
away and the fanciful scruples of the sixteenth and seventeenth
centuries are no longer listened to.
Modern legislation ought to sweep away every vestige of those
fantasies and arbitrary rules of criminal lawyers which now hinder
and obstruct the administration of the criminal law, and go back
to those simple principles which the untutored wisdom of our fore-
fathers never thought of calling in question.
152 CONSTITUTIONAL HISTORY OF ILLINOIS.
Finally : There are many and various conceptions of justice.
The most reasonable distinction is between universal and particular
justice. The first is when every duty is discharged and all right
done to others, even that which could not have been exacted by
force or by the vigor of the law. Particular justice is when we do
that and no more, which may be strictly demanded of us. And
this is again divided into distributive and commutative. Distribu-
tive justice pertains to the public, and is sometimes known as public
justice, while commutative is founded upon reciprocal bargains and
contracts, but partakes largely of public justice. It is the duty of
a court in the administration of the law, to see that public justice
has an equal chance with any other justice, either public or private.
The tendency of modern ideas seems to be to regard the public
interests as of but very little consequence.
"Impartiality," says Bouvier, "is the first duty of a judge. He
is bound to declare what the law is, and not to make it; he is not
an arbitrator, but an interpreter of the law. It is his duty to be
patient in the investigation of the case, careful in considering it, and
firm in his judgment. He ought, according to Cicero, never to lose
sight that he is a man; that he can not exceed the power given him
by his commission; that not only power, but public confidence, has
been given to him, and that he .ought always seriously to attend, not
to his wishes, but to the requisitions of law and justice."
It is the prerogative of the court, by the common law, to abso-
lutely determine whether a juror is biased or prejudiced for or
against the prisoner at the bar or State, and his decision is final.
After a juror states that he is not sensible of any bias or preju-
dice in the case, it ought not to be erroneous to refuse a further
examination of the juror, and it is said the mind of the court, and
not of the counsel, must be satisfied that the challenged juror is
free from bias and prejudice.
;: "We can never secure from general society, as it is now consti-
tuted, a body of men entirely free from partiality, impression or bias;
at best, we can only get as near to this as we can by discrimination
and scrutiny. The day is fast disappearing when men are required
to come into a jury box entirely and absolutely free from any
impression and even opinion, as to matters of general notoriety.
We are now coming to the recognition of a fact that must have
been long ago apparent that it is preposterous to expect men
StATE AND FEDEKAL JUDGES. 153
moving in general society as it is to-day, to be unimpressed and
uninformed as to current and striking events.
We must either recede and go back to the practice of an age
when ignorance of passing events constituted a characteristic of the
times, and exclude evory juror who has formed an opinion, even
the slightest, or we must stand abreast with the present age, when
every remarkable event of to-day is known all over the country to-
morrow, and exclude those whose opinions are so fixed as to be
prejudgments or have been founded upon the known evidence in
It is needless to say the world moves and carries us with it, and
if we lag behind we must commit the trial of the most important
causes in life to those so ignorant that their dark minds have
never been smitten with the rays of intelligence.
We inherited the common law, and adopted it by statute in
this State at a very early period, and yet in the trial of jury cases,
the true position of the court is lost sight of, and instead of being a
trial by judge and jury, the trial is regarded as a trial by the jury
alone, and the court has but very little part in it.
State and Federal Judges.
IT is a very common remark among lawyers and laymen that the
United States courts possess many advantages over those of the
State courts, but they do not stop to consider what it is that makes
the difference. In the first place the permanence of the judicial
office has one advantage; secondly, the limited range of their sub-
jects, which are confined to the Federal jurisdiction, following day by
day, week by week and year by year, the Supreme Court decis-
ions; and thirdly, the power that they possess and which they exert
in trying cases and summing up the facts to the jury. These are
matters of great importance.
Chief Justice Kent called attention to some of these points as
early as 1826. and in the first volume of his Commentaries speaks of
the matter in this wise :
"There are," says he, "several reasons why we may anticipate the
154 CONSTITUTIONAL HISTORY OF ILLINOIS.
still increasing influence of the Federal government, and the con-
tinual enlargement of the national system of law in magnitude and
value. The judiciary of the United States has an advantage over
many of the State courts, in the tenure of office of the judges, and
the liberal and stable provision for their support.
"The United States are, by these means, fairly entitled to com-
mand better talents, and to look for more firmness of purpose
greater independence of action, and brighter displays of learning-
The Federal administration of justice has a manifest superiority over
that of the individual States, in consequence of the uniformity of
its decisions, and the universality of their application.
"Every State court will naturally be disposed to borrow light
and aid from the national courts, rather than from the courts of
other individual States, which will probably never be so generally
respected and understood. The States are multiplying so fast, and
the reports of their judicial decisions are becoming so numerous,
that few lawyers will be able or willing to master all the intricacies
and anomalies of local law, existing beyond the boundaries of their
own State. Twenty-six independent State courts of final jurisdic-
tion over the same questions, arising upon the same general code
of common and of equity law, must necessarily impair the symmetry
of that code.
" The danger to be apprehended is, that students will not have
the courage to enter the complicated labyrinth of so many systems,
and that they will, of course, entirely neglect them, and be con-
tented with a knowledge of the law of their own State and the law
of the United States, and then resort for further assistance to the
never-failing fountains of European wisdom.
"But though the national judiciary may be deemed pre-eminent
in the weight of its influence, the authority of its decisions, and in
the attraction of their materials, there are abundant considerations
to cheer and animate us in the elevation of our own local law. The
judicial power of the United States is necessarily limited to national
objects. The vast field of the law of property, the very extensive
head of equity jurisdiction, and the principal rights and duties
which flow from our civil and domestic relations, fall within the
control, and we might almost say the exclusive cognizance of the
State governments. We look essentially to the State courts for
protection to all these momentous interests. They touch, in their
operation, every chord of human sympathy, and control our best
AND FEDERAL JUDGES. 155
destinies. It is their province to reward and punish. Their bless-
ings and their terrors will accompany us to the fireside, and 'be in
constant activity before the, public eye.' The elementary princi-
ples of the common law are the same in every State, and equally
enlighten and invigorate every part of our country. Our municipal
codes can be made to advance with equal steps with that of the
Nation, in discipline, in wisdom and in lustre, if the State govern-
ments (as they ought in all honest policy) will only render equal
patronage and security to the administration of justice. The true
interests and the permanent freedom of this country require that
the jurisprudence of the individual States should be cultivated,
cherished and exalted, and the dignity and reputation of the State
authorities sustained with becoming pride. In their, subordinate
relation to the United States, they should endeavor to discharge
the duty which they owe to the latter, without forgetting the
respect which they owe to themselves. In the appropriate lan-
guage of Sir William Blackstone, and which he applied to the
people of his own country, they should be ' loyal, yet free; obedient
and yet independent.' "
By the organic law of the State of Illinois the tenure of office
of all judges is of short duration, and all are elected by the people.
The Supreme Court judges are elected for the period of nine
years, the Circuit and Superior Court judges for six years, and all
other judges for four years.
In New York, by a recent amendment to their Constitution, all
the judges of courts of record, like those of the circuit judges in
this State, are elected for fourteen years.
By the Constitution of Massachusetts, which was adopted in 1780,
it was provided as follows:
"It is essential to the preservation of the rights of every
individual, his life, liberty, property and character, that there bean
impartial interpretation of the laws and administration of justice.
It is the right of every citizen to be tried by judges as free, impartial
and independent as the lot of humanity will admit.
" It is, therefore, not only the best policy, but for the security of
the rights of the people, and of every citizen, that the judges of the
Supreme Judicial Court should hold their offices as long as they
behave themselves well, and that they should have honorable sal-
aries, ascertained and established by standing laws," and, we will
add, not required to " board around."
156 CONSTITUTIONAL HISTORY OF ILLINOIS.
Mr. Justice Gray, in deciding the case of the United States
v. The Eeading Kailroad, 123 U. S. 114, says: "Trial by
jury in the courts of the United States is a trial presided over
by a judge, with authority* not only to rule upon objections to
evidence, and to instruct the jury upon the law, but also, when in
his judgment the due administration of justice requires it, to aid
the jury by explaining and commenting upon the testimony and
even giving them his opinion upon the questions of fact, provided
only he submit those questions to their determination," citing Vicks-
burg & Meridian Railroad Co. v. Putnam, 118 U. S. 545; St. Louis
Railway v. The Yickers, 1SS2 U. S. 360. We would like for some
one to define what a court is in Illinois under our practice. We
think that a short definition of an Illinois court may be as follows:
A court is composed of an individual called a judge, assisted by a
clerk, whose chief duty and functions are to look wise and keep
order. He has no power to sum up a case or explain anything to a
jury and the only aid or assistance that he can render them is to
mark "given" or "refused" on all instructions and conundrums
presented to him by the attorneys in the case.
Is a Constitutional Convention Necessary to Induce the
Supreme Court to Recognize and Enforce the Statutes
Relating to the Common Law.
IT is well enough for us as citizens of the State of Illinois and as
lawyers to remember how directly we are connected with the
great expounders of the common law. and how strenuously we should
uphold it when not expressly changed by statute. We all know
that Illinois was once the frontier county of Virginia, and that
Virginia was founded by letters-patent issued by James I, in the
fourth year of his reign, to-wit, April 10, 1606, to Sir Thomas
Gates, Sir George Somers and others, for two several colonies and
plantations to be made in Virginia and other parts and territories,
for trading and also for propagating the Christian religion "to such
people as yet live in darkness and miserable ignorance of the true
iS A CONSTITUTIONAL CONVENTION NECESSARY. 157
knowledge and worship of God, and may in time bring the infidels
and savages living in those parts to human civility and to a settled
and quiet government."
We think the antiquaries of the State Bar Association should in-
vestigate this matter and see if this has yet been accomplished; for if
the infidels and savages living in these parts have not been reduced
to " human civility," it is time that steps be taken to do so. We also
know that by the fifteenth section of the charter of 1606 it was ex-
pressly stipulated by the king, "for us, our heirs and successors; and
we do declare, by these presents, being our subjects, which shall dwell
and inhabit within every or any of the said several colonies and plan-
tations, and every of their children which shall happen to be born
within any of the limits and precincts of the said several colonies
and plantations, shall have and enjoy all liberties, franchises and
immunities within any of our dominions, to all intents and purposes,
as if they had been abiding and born within this our realm of Eng-
land, or any other of our said dominions ;" and that this planted in
that colony and plantation of Virginia the common law, in all of its
fullness and strength. But it is not, we think, as generally known
that the first draft for the proposed first, Virginia charter annexed
to the petition for the same was drawn by Sir John Popham; that
the charter itself was prepared and drawn by Sir Edward Coke,
Attorney-General under James, assisted by Sir John Dodderidge, the
Solicitor-General; that it was passed under the Great Seal by Sir
Thomas Edgerton, at that time Lord Chancellor; and that the war-
rant for it was granted by Eobert Cecil, son of the great Lord Bur-
leigh, known as Earl of Salisbury, who was at that time the Secre-
tary of State; and that the first drafts annexed to the petition for
the second and third charters, extending the boundaries from sea to
eea, and enlarging the powers of the first, were drawn by Sir Edwin
Sandys ; that these charters were prepared by Sir Francis Bacon
and Sir Henry Hobart, and were passed under the seal also of Sir
Thomas Edgerton, and the warrant issued by Robert Cecil.
By the 22d section of the second charter of Virginia, power is
conferred upon the governors and those ruling and governing the
colony, "full and absolute power and authority to correct, punish,
pardon, govern and rule all such subjects of ours as shall from time
to time adventure themselves thither," etc., "so always as the said stat-
utes, ordinances and proceedings, as near as conveniently may be, be
158 CONSTITUTIONAL HISTORY OF ILLINOIS.
agreeable to the Jaws, statutes, government and policy of 'our realm
of this England"
The third charter still further enlarged the boundaries specified in
the two other charters so as to include any islands on the sea
" adjoining to the said coast of Virginia and without the compass of
those two hundred miles, by us so granted unto the said treasurer
and company aforesaid," etc.; then it confers additional power " to,
punish deserters, misdoers and offenders, and those who circulate
vile and slanderous reports, by summary arrest, and punishing and
proceeding to all intents and purposes as it is used in other like
cases within our realm of England," etc.
Hume in commenting upon the force and effect of these charters
says: "Speculative reasoners during that age raised many objec-
tions to the planting of those remote colonies and foretold they
would soon shake off her yoke and erect an independent govern-
ment in America; but time has shown that the views entertained by
those who encouraged such generous undertakings were more just
and solid." In less than a generation after, the " speculative rea-
soners" became prophets. Hume had not evidently heard of George
Washington, George Eogers Clark or the State of Illinois.
Sir John Popham was speaker of Elizabeth's fourth Parliament
1581-83, was Chief Justice of the Queen's Bench, June 2, 1592,
when he was knighted and made Privy Councillor. He presided
at the trial of Sir Walter Raleigh in 1603 when Coke prosecuted,
and both acted like the devil. He also presided at the trial of Guy
Fawkes and his associates in 1606. He died suddenly June 10, ]607.
His remains repose under a magnificent tomb in the church at
Wellington, Somerset, surrounded by a palisade of wood and iron.
Sir Edward Coke and Sir Francis Bacon need no introduction to
the American lawyer any more than they do to the English lawyer.
Bacon and Coke were at the zenith of their power when the Pil-
grims sailed from England, and it was on the 22d of January, 1621,
that Bacon's sixtieth birthday was celebrated with such eclat at
York House, the ancient seat of his family, when his friend, Ben
Jonson read that celebrated poem containing these lines :
' Hail happy genius of this ancient pile,
How comes it all things so about thee smile,
The fire, the wine, the men, and in the midst
Thou stand'st as if some mystery thou didst.
i& A CONSTITUTIONAL CONVENTION NECESSARY. 159
England's High Chancellor, the destined heir,
In his soft cradle, to his father's chair,
Whose even thread the Fates spin round and full
Out of their choicest and their whitest wool."
January 27th lie was created Yiscount St. Albans; January 20th
Parliament met, and on February 3d, Bacon, in his speech referring
to the " benefits, attributes and acts of government of King James,"
says : " This kingdom now first in His Majesty's time hath gotten a lot
or portion in the New World, by the plantation of Virginia and the
Summer Islands. And certainly it is with the kingdoms on earth
as it is in the Kingdom of Heaven; sometimes a grain of mustard
seed proves a great tree. Who can tell ? " Soon after clouds
gathered around him. He was tried, convicted, fined and impris-
oned released, and died at Arundell's House at Highgate, April 9,
1626. He lies buried in St. Michael's Church, St. Albans.
In 1661-2, a sort of general revision of the laws of Virginia
took place in which they expressly recognize the com;non law of
England, and in the preamble to the code refer to the great con-
fusion which had marked that period as follows : "Whereas the late
unhappy distractions caused frequent changes in the government of
this country, and those produced so many alterations in thu laws
that the people knew not well what to obey, nor the judge what to
punish, by which means injustice was hardly to be avoided and the
just freedom of the people by the uncertainty and licentiousness of
the laws hardly to be preserved, this assembly, taking the same
into serious consideration and gravely weighing the obligations
they are under to discharge to God, the king and the country, have,
by settling the laws, diligently endeavored to prevent the like
inconveniences by causing the whole body of the laws to be reviewed,
all unnecessary acts, and chiefly such as might keep in memory our
enforced deviation from His Majesty's obedience, to be repealed and
expunged, and those that are in force to be brought into one volume,
and lest any prejudice might ariee by the ignorance of the times
from whence these acts were in force, they have added the duties
of every act, to the end that court emight rightly administer justice
and give sentence according to law for anything happening at any
time since any law was in force, and have also endeavored in all
things (as near as the capacity and Constitution of this country
would admit) to adhere to t/iose excellent and often refined laws
of England to which we profess and acknowledge all due obedience
and reverence," etc. 2 Hening's Statutes, p. 4.3.
160 CONSTITUTIONAL HISTORY OF ILLINOIS.
The charters granted by King James I, expressly provide for
the administering the law according to the common law of England
and the statutes made in aid thereof. We adopted the common
law here when we were a Territory and finally when we were
admitted into the Union as a State; now, why is it not adhered to
in the impaneling of jurors and in the recognition of the powers
of the court and the trial of all criminal cases ?
By the express provisions of the statutes of this State, it is pro-
vided "that the common law of England, so far as the same is
applicable and of a general nature, and all statutes or acts of the
British Parliament made in aid of, and to supply the defects of
the common law, prior to the fourth year of James the First,
excepting the second section of the sixth chapter of forty-three
Elizabeth, the eighth chapter of thirteenth Elizabeth and ninth
chapter of thirty-seventh Henry Eighth and which are of a general
nature and not local to that kingdom, shall be the rule of decision
and shall be considered as of full force until repealed by legislative
By Section 428, Chapter 38 of the Criminal Code, it is provided
that "all trials for criminal offenses shall be conducted according to
the course of the common law, except when this act points out a
different mode and the rules of evidence of the common law shall
also be binding upon all courts and juries in criminal cases, except
as otherwise provided by law."
Now it will be observed by all lawyers in the State of Illinois,
that the only things pertaining to the common law which have been
expressly abolished by statute are the benefit of clergy, appeals of
felony, trials by battle and trials by a jury de mediatate linguce.
All elee remains, and yet the Supreme Court has by its rulings
completely ignored these statutes for nearly forty years. They
have notably ignored them by reversing case after case, because
the court erred in deciding upon the competency of jurors and in
many other ways too numerous to mention; whereas by the com-
mon law the impaneling of a jury and passing upon the com-
petency of jurors was absolutely in the discretion of the presiding
judge and no case can be found where it was ever sought to review
this discretion. Discretion in the trial of criminal cases must rest
somewhere, and to say that this discretion is liable to abuse and
ought not to be vested in nisi prius judges is to say that there
ought not to be any such thing at all; and the services of a judge
ADDRESS IN CONVENTION MAY 13, 1870. 161
might as well be dispensed with and let the lawyers for the accused
and the jury control the whole trial.
By the common law all trials were by'a judge and jury; now
such a thing seems to be wholly unknown. By the common law it
was the duty of the judge to tell the jury what the case was about
and to sum up the facts; to-day all a judge can do is to mark instruc-
tions given or refused.
Why is it that the statutes relating to the common law are not
recognized and enforced?
Does it require a constitutional convention, we repeat, to com-
pel the court of last resort to recognize and enforce them ?
Shakspeare must have had this condition of things in mind when
" We have strict statutes and most biting laws
(The needful bits and curbs for headstrong steeds),
Which, for these fourteen years, we have let sleep;
Even like an o'ergrown lion in a cave,
That goes not out to prey. Now, as fond fathers
Having bound up threatening twigs of birch
Only to stick it in their children's sight,
For terror, not to use; in time the rod
Becomes more mocked than feared; so our decrees,
Dead to infliction, to themselves are dead,
And liberty plucks justice by the nose."
Measure for Measure, 1, 3.
The Address of the Delegates to the People, Showing the
Changes Made in the Old Constitution and the Reforms
AT the time when we were called upon "to alter, revise and
amend the Constitution " of this State, the Constitution of
1848 had become almost obsolete; the people had outgrown it,
and great abuses existed in almost every department of the govern-
ment calling for the most radical changes. When we had finished
our work we gave an account of our stewardship. We issued a
162 CONSTITUTIONAL HISTORY OF ILLINOIS.
public address to the people, in which we recounted our labors and
the reforms sought to be accomplished; and we pointed out wherein
we had altered, revised and amended the Constitution. That
address is as follows :
ADDRESS IN CONVENTION MAY 13, 1870.
As your representatives in convention to "alter, revise and
amend" the Constitution, it is due that we should state in brief
the most important changes proposed, and some of the reasons
therefor. Our State Constitution has been in force for almost a
quarter of a century, during which time our population, wealth and
interests have augmented. However wise and judicious when
adopted, that Constitution has become wholly inadequate to subserve
the necessities of the State, without modifications and restrictions.
To secure an efficient and at the same time an economical adminis-
tration of the several departments of the government, a new Con-
stitution is an imperious necessity. It is not probable that any
constitution will, in all respects, fully satisfy any one man in the
State. Every one will find in it something he would exclude, and
would insert something it does not contain. It -must be judged
all together, and if better than the old Constitution, it should be
adopted. In all human institutions the good and evil are mixed
and sound sense demands that we secure the greatest good attainable;
and we must often be content if we get more wheat than tares.
For years past the machinery of our State Government has been
kept in motion only by continued violation of plain and positive
constitutional provisions. Nothing can be more pernicious. By
this the people lose their respect for the laws, and learn to hold
them in contempt. A reverence for constitutions and laws is the
best possible guaranty for the stability of the State, the peace and
good order of society, and the protection of the life, liberty and
property of the citizen. And whenever it becomes necessary to
violate a constitution, it should be changed to meet and remove the
necessity which impelled to such violation. Our State Legislatures
are only restrained by the Constitution of the State and of the
United States. It is therefore necessary that State Constitutions
should contain many regulations and restrictions, while the Constitu-
tion of the United States may be much shorter, for that is a gov-
ernment of delegated powers, with only the incidental powers
necessary and proper to execute the powers granted.
ADDRESS IN CONVENTION MAY 13, 1870. 163
BILL OF EIGHTS.
In addition to the usual guarantees of natural and civil liberty,
we have declared that no person shall be denied any civil or politi-
cal right or capacity on account of his religious opinions. All per-
sons have the right to publish the truth, with good motives and
for justifiable ends. Private property shall not be taken or dam-
aged for public use'without just compensation, to be ascertained by
a jury. The fee of land taken for railroad tracks is to remain in
the owners, subject to the use for which it is taken. All irrevo-
cable grants of special privileges or immunities are prohibited,
to protect the people against privileged orders and dangerous
monopolies. Grand juries may bs dispensed with. Our jails are
crowded with criminals during the intervals of circuit courts, at
great expense to -the counties. County courts may be authorized
to try, in a summary manner, many criminal cases, and thus save
the counties the large expenditures of keeping prisoners for trial
from term to term of the circuit courts, and persons not guilty
may be promptly discharged or acquitted.
To avoid partisan injustice in representative districts, and the
expense and delay of the General Assembly in making them, we
have provided for districting the State, as in Ohio, by ratio and
computation. To guard against undue influence upon members of
the General Assembly, and to afford small counties representatives,
we have increased their numbers. We have also required a stringent
oath against bribery and corruption. To afford security against
hasty and vicious legislation, we have required all bills and amend-
ments thereto to be printed before they are passed. Only one sub-
ject shall be embraced in each bill, and when amendments are made
to laws, or acts are revived, the sections amended and acts revived
must be stated at length. The evils of special and local legislation
have become enormous. The expense to the State in passing and
publishing such laws, and the combinations by which private specu-
lations have been secured and monopolies with extraordinary and
dangerous powers have been created, are well known. We have
prohibited the General Assembly hereafter from passing such laws,
and have required general laws in all cases where a general law can
be made applicable. We have forbidden the General Assembly from
releasing any liability to the State or to any municipal corporation
164 CONSTITUTIONAL HISTORY OF ILLINOIS.
therein. We have placed additional guards against speculative con-
tracts made with officers of the State for stationery, fuel, etc., and
we have limited the amount of expenditures to be incurred on
account of the State capitol now in process of construction.
We have provided for public and private roads, and for the
drainage of lands. We have required the enactment of liberal
homestead and exemption laws, and laws for the protection of min-
ers; and we have submitted a separate article, designed to protect
producers and shippers of grain against frauds in warehouses.
We require the governor, at each session of the Legislature,
and at the close of his term of office, to furnish a statement of all
moneys received and paid out by him from any funds subject to
his order, with his vouchers therefor. We make it the duty of
the auditor of public accounts, treasurer, secretary of state and
superintendent of public instruction and persons in charge of State
institutions, to keep an account of all moneys received or disbursed
by them severally, from all sources and for every service per-
formed, and to make a semi-annual report thereof to the governor,
under oath, to be laid before the General Assembly; thus enabling
the representatives of the people to expose, and by suitable laws
prevent, improvident expenditures and frauds. We have given the
governor power to remove all officers appointed by him, in case
they are incompetent or are guilty of malfeasance in office. We
have provided a safer mode of canvassing the votes for governor
and State officers, and avoided the danger of collusion in cases of
contested elections. We have required the governor to submit a
careful estimate of expenses and revenue to each General Assem-
bly. This will restrain extravagant appropriations and give the
people a proper understanding of the financial condition of the State.
We have made the veto power as in the Constitution of the United
States, only to be overcome by a vote of two-thirds in each House
of the General Assembly. Had this provision been in our existing
Constitution, it would have saved us from many injurious and
unconstitutional acts and many chartered monopolies passed by the
combinations of interested persons.
We have endeavored to preserve all the courts to which our
people are accustomed, to avoid the evils of too great a variety of
ADDRESS IN CONVENTION MAY 13, 1870. 165
courts, and at the same time make the system sufficiently flexible
to allow the General Assembly to provide for a speedy and prompt
administration of justice. All the new courts indicated are left
entirely in the discretion of the General Assembly to create or not,
as the public wants may demand. Our Supreme Court is bur-
dened with many unadjudicated cases, and decisions are delayed to
the prejudice of suitors and the public. To enable that court to
fully investigate and properly decide and write out creditable opin-
ions, we have added four more judges to its number. We have
required its judges to be elected in separate districts, and at times
when no general election is held, to avoid a partisan court. Should
that court be unable to dispose of its cases with reasonable dispatch,
we have authorized the General Assembly to create an appellate
court, which may be held in each county by the circuit judges,
without additional compensation and with jurisdiction in such cases
as may be prescribed by law. Such courts are said to be of great
value in Ohio and New York. We contemplate continuing the
old circuit court system. We have, however, authorized the Gen-
eral Assembly to provide for electing not exceeding four judges in
a larger circuit, and to assign them to duties in its counties. The
advocates of this system affirm that it has worked well in other
States, and is an improvement on our present system; that it avoids
frequent changes of venue and the expenses of parties and wit-
nesses occasioned thereby; that it secures greater uniformity of
practice in circuit courts, and enables the people to procure more
competent judges and dispose of their suits with greater facility.
To remove the evil of frequent changes of the times of holding
courts, we have provided that they shall not be altered during the
terms of the judges, and to prevent the creation of too many cir-
cuits we have put restrictions upon the same. We have provided
that county courts may have additional jurisdiction conferred by
law, and county judges, if desirable hereafter, may be elected in
districts composed of two or more counties, and probate courts may
be established in counties having a population over 50,000. We
have provided for the election of state's attorneys in each county, in
lieu of circuit attorneys. We have established a special system of
courts for the county of Cook, which, it is confidently expected?
will meet her necessities. We have required laws relating to courts
to be of general and uniform operation; and the organization, juris-
diction, powers, proceedings and practice of all courts of the same
166 CONSTITUTIONAL HISTORY OF ILLINOIS.
class, so far as regulated by law, and the force and effect of process,
judgments and decrees of such courts, shall be uniform. We have
made it the duty of all judges of courts of record to furnish the
General Assembly with defects they may discover in our laws.
The performance of this duty with fidelity will enable the Legisla-
ture to simplify and perfect our statutes.
All existing courts are continued until otherwise provided by law.
ELECTION AND BIGHT OF SUFFRAGE.
"We have made our law on suffrage conform to the Constitution
of the United States, and extended that right to persons informally
naturalized before courts of record anterior to January, 1870; and
we have submitted a separate article on minority representation.
We have required a thorough and efficient system of common
schools, and that all grants and donations for common school pur-
poses shall be applied to their use with fidelity. We have forbid-
den the General Assembly and all public corporations from donating
money or property to any church, or for any sectarian purpose, or
for any school controlled by any church or sect ; and we have pro-
hibited school teachers and school officers from being interested in
the sale of books, apparatus and furniture in the schools with which
they are connected.
We have retained the valuable features of the revenue article in
the Constitution of 1848, and have provided in addition that before
sales of real estate for taxes are made, a return of unpaid taxes
shall be made to some general officer of the county for collection,
with authority to sell for default, on an order of a court of record,
the object being to secure uniformity of sales, prevent abuses, and to
provide a general and convenient mode by which persons interested
may obtain information and pay assessments or taxes, or redeem
from tax sales. We have forbidden the General Assembly from
discharging any county, city, township or district from its propor-
tionate share of State taxes, and prohibited all commutations
for such taxes, thus securing, in State taxation, equality of burdens
for common benefits, and we have repealed the two-mill tax.
We have provided that if a portion of a county is added
to another county, its inhabitants shall be obliged to pay its
ADDRESS IN CONVENTION MAY 13, 1870. 167
proportion of the indebtedness of the county from which it
is taken. We have required that voters on the question of
removing county seats shall, next before the election, reside in
the county six months, and in the election precinct ninety days;
and that the question of the removal of the county seat shall not
be oftener submitted than once in ten years; and we have submitted
separately the question whether less than] three-fifths of the votes
cast shall be sufficient for the removal of a county seat, when pro-
posed to be moved further from the center of a county. "We have
provided that counties having adopted township organization, may,
by vote, dispense with the same. We have provided that counties
not under township organization may elect a board of three county
commissioners to manage their county affairs, one of whom shall be
elected every year; and we have made special provisions for Cool:
county. We have provided for the usual county officers and their
compensation. All officers who are paid by fees, are required to
make a semi-annual report, under oath, of their fees and emolu-
OITIESj TOWNS, ETC.
In the numerous cities and towns of this State, streets, alleys,
sidewalks, etc., are indispensable to their growth and prosperity*
They must be graded, paved and kept in repair. How this shall
be done, how paid for, what proportion by the owners of con-
tiguous property, and what by general contribution, the people
of the particular town or city are better qualified to decide than
others can be. The same system will not be suited to the wishes or
necessities of all places. Under our present la '.vs., streets and side-
walks are falling into decay, and a radical reform is indispensable.
To remove this evil, we have authorized the Legislature to vest in
each city and town full power and control of such improvements,
and of the means best adapted to its wishes, circumstances and
necessities. For all other purposes, taxation therein must be uni-
form. We have also prohibited the General Assembly from impos-
ing taxes upon municipal corporations for corporate purposes. If,
in all other respects, the two Constitutions are equal, these provis-
ions alone should secure the support of every citizen of every town
and city in the State.
We have provided that no corporation, public or private, shall
be created or have its charter amended by special law, except
1G8 CONSTITUTIONAL HISTORY OF ILLINOIS.
institutions for charitable, educational or reformatory purposes,
under the patronage of the State. All grants of chart 2rs for special
and exclusive privileges under which no organizations have taken
place, or which shall not have been in operation within ten days
after this Constitution takes effect, shall be invalid. We have pro-
hibited the construction of street railways without the consent of
the local authorities in towns and cities ; and we have provided for
the protection of the minority of stockholders of private corpora-
tions in the election of directors.
"We have prohibited the State from being interested in any
banking corporation; forbidden the establishment of any bank of
issue, deposit or discount without the approval of a majority of votes
cast at a general election. We have declared that no suspension
of specie payments shall be legalized; and we have required that
banks shall deposit ample securities for the protection of their
We have provided that railroads owning parallel or competing
lines shall not be consolidated, and that a majority of the directors
shall be residents of this State. We have declared railroads to be
public highways, and required the General Assembly to establish
reasonable maximum rates of charges, and to prevent unjust dis-
criminations and extortions. We have asserted the right of the
State, by the exercise of the power of eminent domain, to subject
the property and franchises of incorporated companies to the public
use, the same as the property of natural persons. We have pro-
vided against the release of the obligation of the Illinois Central
Kailroad to the State, thereby securiug to the State nearly half a
million of dollars annually.
STATE, COUNTY AND MUNICIPAL INDEBTEDNESS.
We have prohibited the State from contracting indebtedness
beyond $250,000, without submitting the law to the people. We have
forbidden the General Assembly from loaning the credit of the
State and making appropriations from the treasury in aid of inter-
nal improvements, and from paying or assuming the debts or lia-
bilities of any public or other corporation, association or individual.
We have prohibited county authorities from ever assessing taxes,
the aggregate of which shall exceed seventy-five cents per $100
ADDRESS IN CONVENTION MAY 13, 1870. 169
valuation, except for the payment of indebtedness existing at the
adoption of this Constitution, unless authorized by a vote of the
people of the county. We have forbidden cities, counties and all
public corporations from creating or further increasing their
indebtedness above five per cent, on the value of the taxable prop-
erty within the same, and required that at the time of incurring
such indebtedness, an annual tax shall be levied, sufficient to pay
the interest as it falls due, and to discharge the principal within
twenty years. For want of such a provision in our State Constitu-
tion, our counties, towns and cities have contracted, liabilities of
over $50,000,000. "We have submitted a separate article prohibit-
ing all municipal subscriptions to railroad stock.
FEES AND SALARIES.
Under the present Constitution it was found practically impos-
sible to carry on the three departments of government without
evading its provisions. The compensation allowed the governor,
State officers, judges and members of the General Assembly, was
wholly insufficient in times when the prices of all the necessaries of
life were increased, and the currency inflated. By general and
special laws, the fees of clerks and inferior officers afforded them
much greater incomes than the salaries of governor and judges, and
in the populous counties, and in Chicago, those fees afforded com-
pensation beyond all reasonable bounds. "We have inaugurated a
system by which all perquisites of judges and State officers will be
prohibited. We have limited members of the General Assembly
to fifty dollars each per session, in addition to their per diem and
mileage, in full for postage, stationery, stamps, newspapers and all
other incidental perquisites. These perquisites amounted at the
last session of the General Assembly to over fifty-four thousand
dollars, which was about five hundred dollars to each member.
We have provided that the fees and salaries of all officers under
the Constitution shall not be increased or diminished during their
terms; and that, with few exceptions, such fees and salaries shall
be fixed before their terms commence. We have abolished all special
laws in relation to fees, and put in force the general laws in such
cases ; and we have required the next General Assembly, by general
uniform law, to provide and regulate fees of all persons holding
county offices, and their successors, so as to reduce the same to a
reasonable compensation, in not exceeding three grades in the dif-
170 CONSTITUTIONAL HISTORY OF ILLINOIS.
ferent counties ; and all laws fixing the fees of State, county and
township officers shall terminate with the terms of those in office at
the meeting of the first General Assembly.
We have provided that State and county officers shall be paid
reasonable salaries, out of the fees collected by them, and that the
surplus be paid into the State or county treasury. Thus, fees and
salaries may hereafter be regulated by the condition of the country;
"and we have allowed all officers now in office to serve out their
AMENDMENTS TO THE CONSTITUTION.
To save all controversy in the future convention to amend the
Constitution, we have fixed the qualification of its members, the
oath of office they shall take, the manner of filling vacancies, and
provided that amendments proposed by such convention, before
they take effect, shall be ratified by the electors of the State. As
a means of avoiding the necessity and expense of such a conven-
tion, we have provided that two-thirds of each House of the Gen-
eral Assembly, may submit amendments to any one article of the
Constitution; and if ratified by the people at the succeeding general
election, such amendments shall constitute part of the Constitution.
Such are some of the prominent amendments we propose.
They are the result of much labor, reflection and discussion, and
we are confident that interest and inclination will induce you to
give them that earnest, careful and candid consideration they
deserve, and that you will render such a decision as will promote
your own well being, and the future prosperity of the powerful,
patriotic and progressive State of Illinois. And it will afford us
sincere pleasure, in after years, to find that our efforts have, in
some measure, contributed to such desirable consummation.
W. H. UNDERWOOD, Chairman. S. S. HAYES,
O. H. BROWNING, WM. GARY,
L. S. CHURCH, GEO. E. WAIT,
L. W. Ross, J. C. ALLEN,
J. W. ENGLISH, M. HAY,
JOSEPH MEDILL, JESSE S. HILDRUP,
W. J. ALLEN, H. P. H. BROMWELL,
WM. C. GOODHUE, EDWARD Y. RIOB.
How State Taxes Have Been Diverted, School Lands Stolen
and Other Abuses under the Old Regime, with Some
Remarks on the Value of the " Pay As You Go " Policy.
T^HE history of the State of Illinois shows that in the past we
suffered much from the granting of special charters and hasty
legislation and we did what we could to stop it. Under the then
existing order of things, the public interests seemed to have heen
almost forgotten and just about three quarters of the time of the
General Assembly was taken up in the consideration of private
bills and the granting of special charters, whereas now, everybody is
upon an equality, and general laws, instead of being the excep-
tion, are the rule. In our address we say: "We have provided
that no corporation, public or private, shall be created or have its
charter amended by special laws, except institutions for charitable,
educational or reformatory purposes under the patronage of the
We found a condition of things existing in many parts of the
State that will scarcely be believed at the present time.
We found that under the guise of assisting in the construction
of railroads in new sections of the State, that towns, cities, villages
and even school districts had voted large subsidies, and had issued
their bonds to pay for the same, and that the people, and especially
the taxpayers and property owners, were in danger of having their
property confiscated. In many counties the state of affairs was
such that persons avoided them, and those seeking homes in the
West could not be induced to settle there. We investigated this
matter thoroughly and obtained from the auditor a list of such in-
debtedness, and found that it was enormous. In many instances
laws had been passed diverting the State taxes and appropriating
them to pay the interest on the bonds of municipal indebtedness.
The State Auditor was made the paymaster of these various munici-
palities and every effort was put forward to compel the State to
assume all these debts.
172 CONSTITUTIONAL HISTORY OP ILLINOIS.
As a specimen we present one single report upon this subject
made by the State Auditor. This report was made by the request
of the convention and in it he says :
" The American Bottom Levee Company gets the State tax
on all property assessed in four (4) townships in St.
Clair county for live (5) years under private laws, 1867,
Vol. 2, page 795; assessed valuation of said townships in
1868, $1,534,125; estimated revenue fund tax for 1869 $12,273
The St. Clair and Monroe Draining Company gets the
State tax on the increased valuation of subsequent years
over valuation of 1859, for fifteen years from 1865
under private laws, 1865, Vol. 2, page 2, in certain dis-
tricts in the counties of Monroe and St. Clair; estimated
amount of State revenue tax for 1869, in surplus valua-
tion of 1869 over 1859 2,000
The Kaskaskia River Navigation Company under private
laws, 1869, page 872, gets the State tax on all property
assessed in nine (9) townships for ten (10) years from
1868 in Randol ph county. Net valuation in 1868 amounts
to $1,089,555; estimated amount State revenue tax for
1869 thus given 2,400
Alexander county under public laws 1869, page 330, gets
all State tax collected in said county for the years 1869-
1870; estimated amount of revenue fund tax for 1869. . 14,000
Mound City (Pulaski county) under private laws 1867,
Vol. 1, page 837, gets State tax on all property in said
city for ten years from 1867; estimated revenue fund
for 1869 thus given 2,500
City of Shawneetown (Gallatin county) by its charter, pri-
vate laws 1861, page 272, gets State tax on all property
assessed in said city for twenty years. Revenue fund
State tax on assessment 1869, in said city, estimated to
Wabash River and its tributaries in Allison Prairie Levee
^Company (Lawrence county) gets the State tax on all
property assessed in six (6) townships for ten (10) years
from 1866, laws 1867 (private), page 305, Vol. 2. The
property in said township assessed for 1868, $418,461;
estimated revenue State tax for 1869 3 000
AfitJSES tttDER THE OLD REGIME.
Surplus, etc., revenue tax (State) on assessment 1869 over
assessment 1868, given to counties, townships, cities and
towns in aid of railroads, public laws 1869, page 316,
estimated by auditor in levying rates of taxes for 1869
to amount to for 1869 4,728
Total amount of revenue tax on assessment to be disposed
of for one year by the foregoing laws $50,701
In estimating the foregoing amounts only the revenue fund State
tax was taken into consideration. Heretofore, it has been considered
that said acts appropriated the tax levied to pay interest on the State
debt; but in a recent case that came before me, I held that said
interest tax could not be so diverted. Should this ruling be con-
tested in the Supreme Court, and not sustained by said court, the
amounts I have given in each case, as well as the aggregate, would
be increased one-eighth.
C. E. LIPPINCOTT,
See Yol. 1 of the Constitutional Debates, 1870, p. 413-14.
If this report of the auditor is carefully examined, and its bear-
ings understood, it will present a most extraordinary showing, and
if Cook county had thus received at any time any such magnificent
donations for any purpose, of the State taxes, there would have
been a universal outcry.
As a supplement to the above and foregoing, a most interesting
chapter will be unfolded by referring to page 736 of the journal of
the convention, and there examining the " statement of State taxes
appropriated and diverted from the State treasury by special laws
during the last ten years," together with 1 a reference to the laws
themselves, made by the auditor by request of the convention.
The amounts which, first and last, have been taken from the
State treasury and appropriated for the benefit of private corpora-
tions and local improvements, and for the benefit of towns, cities
and villages in the rural districts, would, if carefully collected,
amount to several millions, while Cook county has never got a
dollar that we are aware of.
Another thing we discovered, and it was this: that when the
appetite for greed and rapacity had once been developed, it stopped
at nothing and knew no bounds whatever.
174 CONSTITUTIONAL HISTORY OF ILLINOIS.
"We had at one time a large quantity of valuable lands belonging
to the college and seminary fund of the State, located in the county
of Cook. The people of southern Illinois found it out and in 1861
got an act through the Legislature incorporating an institution
which they called the "Illinois Agricultural College" (a private con-
cern^ not the State Agricultural College at Champaign at all, but
a private institution), came up to our county, took these lands and
sold them, and soon after this high-sounding institution was found
to be bankrupt and all the money which was derived from the sale
of these lands was lost and squandered. We then came to the con-
clusion that the indiscriminate organization of private corporations
by special laws, with special powers and privileges, was a great abuse
and that some check ought to be placed upon the Legislature in
granting them and therefore a check was placed upon the Legisla-
ture for so doing.
Under the wise and judicious lead of the late Hon. Wm. F.
Coolbaugh, who had had great experience under somewhat similar
circumstances in the State of Iowa, and who had a national reputa-
tion as a financier, we adopted the principle of pay as yougo, which,
if carried out, will be worth millions to this and all future genera-
tions. It is a curious thing that in this age, when wealth is so
universally diffused, that so few have ever mastered the rudiments
of political economy, and stranger still, that no one seems to under-
stand the value of a dollar.
To the great mass of the people it seems to be evidence of the
highest wisdom if public improvements can be made by borrowing
money at high rates of interest, provided bonds can be issued to
pay for the same, and they never bestow a thought upon how
either the interest is to be paid or the principal satisfied.
The common councils of our cities and other municipal bodies
beat against the barriers which protect the public treasury, like
prisoners against their grated cells. Taxpayers ought to have some
guaranty against improvidence and the dangers of confiscation.
We believe if it had not been for the wise and conservative
policy to be pursued in the levying and collecting of taxes, and the
limitations on taxation provided in the Constitution, that the city of
Chicago would to-day be in debt $100,000,000 instead of thirteen
or fourteen millions.
We found, in addition to the foregoing, that a system of com-
mutation of taxes had been inaugurated, by which thousands upon
ABUSES UNDER THE OLD REGIME. 175
thousands of dollars of the public revenues had been taken and
appropriated to local improvements and private purposes, while the
other portions of the State were supplying all the defenses. This
we remedied, and we said in our address:
"We have forbidden the General Assembly from discharging
any county, city, township or district from its proportionate share
of State taxes, and prohibited commutation for such taxes; thus
securing in State taxation, equality of burdens for common benefits;
and we have repealed the two-mill tax. * * *
We have prohibited the State from contracting indebtedness
beyond $250,000, without submitting the law to the people. We
have forbidden the General Assembly from loaning the credit of
the State and making appropriations from the treasury in aid of
internal improvements and from paying or assuming the debts or
liabilities of any public or other corporation, association or individ-
ual. We have prohibited county authorities from over-assessing
taxes, the aggregate of which shall exceed seventy-five cents per
$100 valuation, except for the payment of indebtedness existing at
the adoption of the Constitution, unless authorized by a vote of the
people of the county. We have forbidden cities, counties and all
public corporations from creating or further increasing their indebt-
edness above five per cent, in the value of the taxable property
within the same, and required that at the time of incurring such
indebtedness an annual tax shall be levied sufficient to pay the
interest as it falls due and to discharge the principal within twenty
years. For want of such a provision in our State Constitution, our
counties, towns and cities have contracted liabilities of over
$50,000,000. We have submitted a separate article prohibiting all
municipal subscriptions to railroad stock.
The judicial department of the government was reorganized and
adequate salaries provided for and the Legislature given power to
change them from time to time, to adjust them so as to allow an
increase if necessary; whereas, before, they were fixed by the Con-
stitution and made unchangeable. Uniform laws were required to
be passed relating to the organization, jurisdiction, powers, pro-
ceedings and practice of the courts of the same class so far as reg-
ulated by law, and the force and effect of process, judgments and
decrees of such courts shall be uniform."
The Organization and Government of Great Cities.
NE of the greatest and most valuable characteristics of our Con-
stitution is that provision which absolutely prohibits class
legislation and the passage of special and private laws, and of
"granting to any corporation, association or individual, any special
privilege, immunity or franchise whatever by special law." This
feature of our Constitution has received universal commendation,
both in this country arid in England, and is, as one of the members
of the British House of Commons told me, one of the most valuable
prerequisites that was ever appended to a fundamental law. It
is a standing proclamation to the world and to the people of the
State of Illinois that the contest for life here shall be that of a free
fight and no favors Queensbury rules.
The mode of "regulating county and township affairs," and of
"incorporating cities, towns or villages, or changing or amending
the charter of any town, city or village," it will be observed, shall
be by general laws. But there is no prohibition whatever in the
Constitution regarding their classification ; and while it may be that
the Supreme Court would hold that there could not be a law, gen-
eral in its character, to apply to cities of one million and upwards,
we doubt it. We think that general powers can be provided for in
the organic laws of cities which would be ample for every emer-
gency. But the Constitution does not provide or say anything how
cities shall be organized; whether they shall be governed as a private
corporation or by a mayor and common council, composed of fifty
or five hundred; therefore the government of cities is an open
question, and is fast becoming the great problem of the age.
The rural districts seem to be decreasing in population, while
the young and rising generation seem to be struggling up from the
small towns, cities and villages, and throwing themselves upon the
world of the metropolis.
Hon. Andrew D. White, late President of Cornell University,
one of the most cultivated of Americans, and a man who has had great
opportunities for observation, both in this country and in Europe,
ORGANIZATION AND GOVERNMENT OF GREAT CITIES. 177
has discussed the " Government of American Cities " in the Decem-
ber number of " The Forum," 1890, in a most masterly manner,
and we commend it to all legislators and constitution makers as
worthy of their most thoughtful consideration. lie shows that we
are attempting to govern our cities upon "a theory which has
never been found to work practically in any part of the world."
His caution is, that, the questions in a city not being political
questions, but having reference to the laying out of streets, to the
erection of buildings, to sanitary arrangements, to the control of
franchises and the like, and to provisions for the public health and
comfort in parks, boulevards, libraries and museums, that the work
of the city should be logically managed as a piece of property by
those who have created it and who have a title to it or a real sub-
stantial part in it. As things are now, says he, "a city is a polit-
ical organization over which a crowd of illiterate peasants, freshly
raked in from Irish bogs, or Bohemian mines, or Italian robber-
nests may exercise virtual control; and how they control it (speak-
ing of New York City) we know too well."
As a compromise between the political and the corporate idea,
he says, however, "I would elect the mayor by the votesot'the major-
ity of all the citizens as at present; I would elect the common coun-
cil by a majority of all the votes of all the citizens, so that wards
composed largely of thieves and robbers can not send thieves and
robbers, and so that men who can carry their ward can not control
the city; I would elect the board of aldermen on a general ticket,
just as the mayor is elected now, thus requiring candidates for the
board to have a city reputation. So much for retaining the idea of
the city as a political body. In addition to this, in consideration
of the fact that the city is a corporation, we would have those
owning property in it properly recognized.
"I would leave to them, and to them alone, the election of a board
of control, without whose permission no franchise should be
granted, and no expenditure should be made. This should be the
rule. * * * A theory resulting in a system virtually like this
has made the cities of Europe, whether in monarchies or repub-
lics, what they are, and has made it an honor in man}' foreign
countries for the foremost citizens to serve in the common coun-
cils of their cities." There is nothing in our present Constitution
to prevent the trial of this theory.
178 CONSTITUTIONAL HISTORY OF ILLINOIS.
The justice of the peace system plight well, at the present time,
be superseded by district courts, which should be courts of record,
with such criminal jurisdiction as to enable them to try and dispose
of, summarily, all criminal cases below the degree of felony and such
cases of misdemeanor punishable by fines and imprisonment in the
penitentiary, as should be provided by law.
The history of the twenty-eighth section of the judiciary
article of the Constitution of the State, relating to the appointment
of justices of the peace in the city of Chicago, is interesting.
For years before the constitutional convention was called to
revise the Constitution, great complaint existed as to the manner
in which the law was administered in the justice courts, and as to
the class of persons who filled the offices. In many instances, the
justices of the peace were ward loafers and bummers, and in connec-
tion with the constables who hung around their offices, perpetrated
the most outrageous crimes upon the poor and defenseless who were
so unfortunate as to come within their grasp. Conspiracies were
found to exist, in some instances, between the justices and constables,
to prefer charges against people for violation of laws and ordinances
of the city; and they would then be brought before the magistrates
and fined, or the suits compromised and the money divided between
the justices and the constables. The whole administration of the
law had become a farce, and was oftentimes attended with scenes of
brutality shocking to humanity. In one instance, an ex-judge of a
circuit court, while trying a case, was set upon by policemen at
the command of the justice, for a fancied insult to his Majesty,
and mauled to death at least he died soon after the assault made
upon him, from the effects of the beating. Public attention finally
became aroused, and indictments were found against some of the
justices and constables, and they were convicted and punished. It
seemed as if no remedy could be offered the public under the old
system of electing justices, and a universal outcry went up for an
entire change in the system, and for a better class of men to fill the
offices. The newspapers all took part in the discussion, and the
examples of Boston and New York were cited, where district
courts existed, presided over by judges who had limited juris-
diction in civil and criminal cases, and who disposed of almost all
cases of misdemeanors and minor offenses without the interven-
tion of a grand jury. Judge Russell, of Boston, we believe, long
presided over one of these inferior courts and was elevated from
ORGANIZATION AND GOVERNMENT OF GREAT CITIES. 179
that position to the Supreme Court. "When the constitutional
convention assembled, we were flooded with petitions from the
people asking us to change the system from election to appointment-
I introduced into that body, on January 5 or 7, 1870, the following
AMENDMENTS OF THE OLD SYSTEM.
"There shall be no justices of the peace in the city of Chicago,
but the said city shall be divided into districts, and one judge elected
for each district, who shall hold his office for the term of four years
and until his successor is elected and qualified. ~No person shall be
elected a judge of the said District Court, unless he shall be an
attorney at law and have been a resident of the city of Chicago at
least years next preceding his election. There shall be a
clerk of each of the said courts, and such other officers as may be
provided by law. Said courts shall have jurisdiction in civil cases
when the amount in controversy does not exceed two hundred dol-
lars, and such criminal jurisdiction as may be provided by law.
Said judges and clerks shall receive such compensation as may be
provided by law, and all fees and perquisites shall be paid into the
This section was referred to the judiciary committee, of which
Mr. Hayes and myself were members. The matter was considered
by the judiciary, and they finally reported it back to the convention
in these words:
"SEC. 40. There shall be no justices of the peace or police
magistrates in the city of Chicago, after the expiration of the terms
of the existing justices of the peace and police magistrates, and the
General Assembly shall, at its first session after the adoption of
this Constitution, divide the city into districts, and establish courts
therein, to consist of one or more judges for each district, and such
officers as may be provided by law. The judges of said courts
shall be appointed by the governor, by and with the advice and
consent of the Senate; but no person shall be appointed except
upon the recommendation of a majority of the judges of the cir-
cuit, superior and county courts, and shall hold their offices for
four years and until their successors be commissioned and qualified.
Such courts shall have jurisdiction in civil cases at law in said city
when the amount in controversy does not exceed $200, and such
criminal jurisdiction as may be conferred by law."
180 CONSTITUTIONAL HISTORY OF ILLINOIS.
" The compensation of said judges shall be fixed by law, and paid
out of the city treasury, and shall not be increased during their
term of office. All fees and perquisites shall be paid into the city
treasury. Appeals in civil cases, from justices of the peace in said
county, and from said courts established in said districts, shall be
allowed in the Circuit or Superior Court of Cook county, in such
manner as may be provided by law." [Debates and proceedings of
the Convention, 2d vol., p. 1481.]
When this came up for consideration, Mr. Hayes, under
instructions from the Cook county delegation, arose and offered the
following as a compromise measure, and as a substitute for the
above, to-wit :
" SECTION 40. All justices of the peace in the city of Chicago
shall be appointed by the governor, by and with the advice and
consent of the Senate, (but only upon the recommendation of a
majority of the judges of circuit, superior and county courts), and
for such districts as are now, or shall hereafter be, provided by law.
They shall hold their offices for four years, and until their succes-
sors have been commissioned and qualified, but they may be removed
by summary proceeding in the circuit or superior court for extor-
tion or other malfeasance. Existing justices of the peace and
magistrates may hold their office until the expiration of their respect-
The adoption of this section was most rigorously opposed by
the Hon. O. H. Browning, Cummings, of Fulton, Hankins and
Allen, of Crawford, and was supported by Messrs. Hayes, Wall,
Underwood, Coolbaugh and myself, and was finally adopted by a
vote of 46 yeas to 19 nays.
WHY THE CHANGE WAS MADE.
The reason why it was made from the original proposition
and from the section as reported by the judiciary committee, was
principally because the people in Chicago thought that if district
courts were established they would become very expensive, and it
was thought more judicious to provide simply for the appointment of
justices of the peace rather than for judges. Great opposition mani-
fested itself in the convention against making the innovation of
appointing justices of the peace. Many thought that it was
depriving the people of their rights to take away from them so
precious a privilege as electing their own local magistrates. I am
ORGANIZATION AND GOVERNMENT OF GREAT CITIES. 181
satisfied that if the original plan had been adopted, it would
have been a great benefit to the people and would have dispensed
with the grand jury in all that kind of cases which are classed as
misdemeanors, and would have resulted in speedy justice. There
is no reason why the law should not be administered with as much
intelligence in our lower courts as in our higher courts. In Boston
and in many other of our large cities the inferior courts are pre-
sided over by well-educated lawyers, and the judges compare favor-
ably with the judges of the higher courts. The convention was
assured at the time of the adoption of the present section that nobody
but men versed in the law would be called upon to administer the
law. and in the debate which afterward occurred on abolishing grand
juries, the matter was again referred to. It was stated that the
examination of criminals in the city of Chicago would take place
before intelligent magistrates versed in the law, and that the great
delays which now take place, in awaiting the action of grand juries,
would be done away with.
I think on the whole that the system has worked well. Some of
the justices at the present time are first-class men, men of culture
and standing, and learned in the law, and are a credit to the city.
And if they were all of the same class it would be better; and then,
if vested with criminal jurisdiction, they could be of the greatest
service to the people, and would relieve the Criminal Court of many
trifling cases, and save the public and taxpayers thousands of dollars
There seems to be a great difference of opinion about how much
our justices and constables realize from fees. This matter could all
be put at rest if the General Assembly would pass a law to meet
the requirements of section 13 of article 10 of the Constitution,
which provides as follows :
" Every person who is elected or appointed to any office in this
State, who shall be paid in whole or in part by fees, shall be required
by law to make a semi-annual report, under oath, to some officer to
be designated by law, of all his fees and emoluments."
I think that the justice courts in the city of Chicago are of the
greatest importance, and that the position should be made one of
honor, and a sure guaranty that the man who is a justice of the
peace in this city is a man of character and respectability. There is
no difficulty whatever in finding such men. The character of these
courts is, as a whole, better than ever before, and the Constitution
182 CONSTITUTIONAL HISTORY OF ILLINOIS.
expressly provides that any one of them may be removed by sum-
mary proceedings in the Circuit or Superior Court, for extortion,
or other malfeasance.
TO INCREASE THEIE EFFICIENCY.
If all justices of the peace in the city of Chicago could be
selected for their intelligence and character, and with a view to the
public good, and without fear or favor, and without regard to nation-
ality or grounds of expediency, and then clothed with the power of
trying and convicting persons charged with misdemeanors and minor
offenses, I believe that it would save the city of Chicago thou-
sands of dollars a year, and be equivalent to adding 200 men to the
present police force of the city. The administration of the crim-
inal law at the present time in this city should, if possible, be
improved, and more speedy trials take place. The efforts of the
police are often paralyzed by the delays attending the arrest
and conviction of criminals, while the county jail is kept full and
running over by persons awaiting examination by the grand jury
and those awaiting trial.
So far as Cook county is concerned the problem of blending
the city and county governments and abolishing township organiza-
tion is more difficult; but if anything more comprehensive is required,
a simple amendment regarding the same, submitted to the people,
can easily be made to accomplish all that is required without call-
ing together a constitutional convention.
The interests of the city of Chicago are such that they must
necessarily engage a good deal of the attention of our Legislature.
In 1880 the population of Illinois, as we have elsewhere shown,
was 3,077,877. Thirty-five per cent, of the inhabitants, or 938,620,
lived in Cook county and in the thirty-eight towns, exclusive of
Chicago, which had a population of over 4,000 each. In 1890, the
population is returned as 3.818,536 persons of whom 1,642,732 or
forty-three per cent, live in this county and the thirty-eight towns,
and cities like Aurora, Elgin, Springfield, etc.
In ten years the urban population of the State has grown sev-
enty-five per cent. The gain in the rest of Illinois has been less
If to the dwellers in this county and the thirty-eight principal
towns were added the residents of all villages having a population
of a thousand and over, they would form decidedly more than half
the inhabitants of the State,
ORGANIZATION AND GOVERNMENT OF GREAT CITIES. 183
The population of Illinois to-day is 3,818,536; in 1880, 3,077,-
877; in 1870, 2,539,891.
Superintendent Porter, in contrasting the rural with the urban
population, says: "In Ohio, Indiana, Iowa and Missouri, and in
Illinois, if the city of Chicago be dropped from consideration, the
rate of increase has declined decidedly. In Ohio it has fallen from
20 to 15 per cent; in Indiana, from 18 to 11; in Iowa, from 36 to
17; in Missouri, from 26 to 23, in spite of the rapid growth of St.
Louis and Kansas City; and in Illinois, dropping Chicago from con-
sideration, from 14.9 to 5.6 per cent.
It is an entire mistake to suppose that every reform that is pro-
posed and every change'in the existing order of things should be
provided for in the Constitution.
The Legislature has, we assert, the power to make any changes
upon any subject within the bounds of the Legislature, in all cases
where it is not prohibited by the Constitution itself, and in any case
where the Legislature is prohibited such prohibition can be easily
removed by submitting an amendment covering the subject. Those
who are so eager for a constitutional convention and who are so pro-
fuse in condemning the present Constitution, wholesale and retail,
would do well to consider wherein the Legislature is so crippled,
restrained and restricted as to prevent its acting. We would like to
have some one point out any particular thing which is required
to be done and which is necessary to be done at the present time,
that can not be accomplished by the ordinary means of legislation.
No general attack on the whole instrument will suffice. We
want a bill of particulars. If legislation is required for Cook
county and the city of Chicago, which can not now be obtained owing
to some " restraining order " of the Constitution, then we say that
an amendment can be submitted which would confer all power upon
the General Assembly not only to re-organize the municipal govern-
ment, but regulate all its affairs in every way that may be desired.
No constitutional convention is required for any such purpose.
We have heard much complaint about judges exercising func-
tions not pertaining to the judicial office proper, such as election
commissioner, or drainage commissioner, at one and the wune time,
and that such things ought to be prohibited by the Constitution.
But why, we would like to know, should the Constitution provide for
this, when it is to-day wholly within the power of the Legis^tnre?
If there is a need of a constitutional convention for any one
184 CONSTITUTIONAL HISTORY OF ILLINOIS.
thing more than another, it is to enlarge the police power of the
State in regard to sanitary matters in cities, and to confer power
upon the General Assembly and compel that department of govern-
ment to pass a law requiring owners, occupiers and abutters upon
the public streets to keep their sidewalks free from dirt and filth.
Our Supreme Court say that this can not be done under our present
Constitution, although there is nothing in that instrument to pro-
This view we do not concur in, and believe it to be unsound.
The power to compel owners and abntters on sidewalks to keep
them clean is a power which is exercised in every other city, so far as
we know, in the American Union, and in all other civilized countries
beneath the sun. "We are perfectly aware of the reasons assigned
by the Supreme Court for their view of the subject, and it is
based upon the theory that a sidewalk is nothing but a part of the
public street and you might as well compel the abutting owner to
clean the street as the sidewalk; but we submit that this view is
fallacious and that the analogy does not hold good in all its parts-
The man who owns a house and lot, or store, has certain rights and
privileges to the use of the sidewalk, which nobody else has. He
may occupy certain portions of it for the display of his goods and
wares; he may place machinery under the same, and use it for coal
vaults and other purposes, and may even have removed any one
who comes before his premises and blocks it up or obstructs it, and
such persons have interests above and beyond and paramount to
all others. Why, then, should not they be compelled to keep their
sidewalks clean ?
This matter is of such importance to the cities of this State, and
especially the city of Chicago, that if we can not have it remedied
short of a constitutional convention, then we are in favor of calling
Frequent Changes in the Organic Law of a State not
rTlHE tendency on the part of all young, aspiring and ambitious
-L statesmen seems to be innovation, and to overload the people
with a multiplicity of laws and to swell our Constitutions into
The experience of our State is not, we think, very much different
from other States in regard to inexperienced men undertaking to
frame laws for the government of the people. The record upon
this subject as kept by ex-Governor Ford, and as stated by him in
his "History of Illinois," is as follows: "The Assembly having
organized the State government and put it in motion, adjourned to
meet again in the winter of 1818-19. At this adjourned session
a code of statute law was passed, mostly borrowed from the statutes
of Kentucky and Virginia. Upon examining the laws of that day,
it will be seen that they are generally better drawn up than those
which were passed at a later and more enlightened period.
The members were mostly ignorant and unpretending men;
there was then some reverence for men of real knowledge and real
abilities; the world was not then filled with audacious and ignorant
pretenders ; and the sensible and unpretending members were
content to look to men of real talents and learning to draw their
bills. But in these days of empiricism and quackery in all things,
when every ignorant pretender who has the luck to break into the
Legislature imagines himself to be a Lycurgus or a Moses, very few
good laws have been made ; and those which we have, were drawn
by men of talents, who were not members, for the most part.
But this code did not stand long. For many sessions after-
ward, in fact until the new revision in 1827, all the standard laws
were regularly changed and altered every two years to suit the taste
and whim of every new Legislature. For a long time the rage for
amending and altering was so great that it was said to be a good
thing that the Holy Scriptures did not have to come before the Leg-
islature, for that body would be certain to alter and amend them
186 CONSTITUTIONAL HISTORY OF ILLINOIS.
so that no one could tell what was or was not the word of God, any
more than could be told what was or was not the law of the State.
A session of the Legislature was like a great fire in the bound-
less prairies of the State. It consumed everything. And again it
was like the genial breath of spring, making all things new." Ford's
History of 111. p. 31-2.
The moral' of all this is that u the evils that inevitably flow from
any fundamental change in the institutions of a country, are apt to
be much more serious than the evils which the change is intended
to remove. Political government is like a plant; a little watering
and pruning do very well for it, but the less its roots are fooled with
Change, merely for the sake of change, is nnwise and unjustifi-
able. We should, in all of our dealings with the fundamental law
of the land, exercise that true spirit of reform which animates the
reformer and conservative alike, and which keeps the whole fabric
standing, by repairing and improving it from time to time, instead of
tearing it down and digging for relics amid its ruins. Very much
will, in every country, depend upon the homogeneous elements of
the people and their ideas of what enters into and constitutes a stable
government. Mere theories will not amount to anything. French-
men in the fourteenth and fifteenth centuries had theories as mag-
nificent as any that have been put forth in the eighteenth or nine-
teenth. And they had even then already learned to do deeds of
blood in the name of freedom and philanthropy. Therefore French
institutions have not lasted. The States-General lived but a fitful
life from century to century and they perished forever in the
great revolution. Since that time no French institution, no form,
either of the legislative or of executive powers has been able to keep
up a continuous being of twenty years. It would be hard to reckon
up the number of assemblies, conventions, chambers of deputies and
legislative bodies which have risen and fallen in France within the
last 100 years, nor how many written constitutions they have formu-
lated, adopted and promulgated as embodying the true and eternal
principles of civilized government within the same period. At the
great exposition, which was held in Paris, 1876, there were exhib-
ited under a glass case some sixteen or seventeen constitutions finely
engrossed on parchment, of their skill in providing organic laws for
the government of their people, and upon reckoning up the period
of thuir duration, it will appear that not one of them lasted beyond
CHANGES tfoT DESI&ABII}.
fifteen or sixteen years except that of the third republic, which is
now bnt a few days beyond the twenty-first year.
We admit that the process of amending oar Constitution is
slow and cumbrous, but this can be most effectually done away by
providing that any number of amendments may be submitted at one
and the same time; in other words, remove the prohibition on the
number of amendments to be submitted at any one time.
We do not insist upon the immutability of the fundamental law
at all, but we do insist that it shall not be changed without some
good reason and some good cause, for nothing is more deleterious
than the constant upheaval and turmoil which such a revolution
There is a class of persons who are never satisfied with any-
thing, but are ready to stir up discontent and create dissatisfaction
on the very slighest pretense. The condition of people who live
amid constant turmoil is not conducive to peace and happiness, nor
the public welfare. A. constitution ought to be permitted to
remain in force long enough at least, for the people to become
acquainted with it before it is overthrown and cast aside as useless.
We do not think that the times are very propitious for constitution-
making and we think that the very air is filled with vagaries and
unpractical theories which, if followed out, will lead us, we know not
There are in a republic always on hand a set of men who may be
called traders in sedition; who are ready at a moment's notice to
jump into the arena and inflame the public mind. There is danger
that at this conjuncture, men of more zeal than wisdom may obtain
a fatal influence over the masses. " With these men will be joined
others, who have neither zeal nor wisdom, common barrators in
politics, dregs of society, which, in times of violent agitation are
tossed up from the bottom to the top, and which in quiet times
sink again from the top to their natural place at the bottom.''*
A crisis like that which we have mentioned, which makes every
honest citizen sad and anxious, fills these men with joy and with a
detestable hope. How is it that such men, formed by nature to be
objects of mere contempt, can ever inspire terror ? How is it that
they became dangerous to both Empires and Republics ? The secret
of their power lies in the indolence or faithlessness of those who
ought to take the lead in the redress of public grievances.
" The whole history of low traders in sedition is contained in
188 CONSTITUTION At HISTORY OF ILLINOIS.
that fine old Hebrew fable which we have read in the book of
Judges. The trees meet to choose a king. The vine and the fig
tree and the olive tree decline the office; then it is that the sov-
ereignty of the forest devolves upon the bramble; then it is that
from a base and noxious shrub goes forth the fire which devours
the cedars of Lebanon."
Let us be instructed.
We do not distrust the future, but we think that there should
be inculcated a proper regard for so important a document as the
charter of the people, which is known as the organic law, and that
it should not be changed without good cause.
One of the wisest and most profound students of history says :
"Popular governments make many mistakes and sometimes the
people are slow in finding them out, but when once they have dis-
covered them they have a way of correcting them. A popular
government is the best kind of government in the world, the most
wisely conservative, the most steadily progressive and the most
likely to endure."
In many of the States the Legislature is required at stated inter-
vals to submit to the people the question of holding a constitutional
convention and if the people vote in favor of the same then one is
called by the Legislature. In New Hampshire this question is sub-
mitted to a vote of the people every seven years; in Iowa every
ten years; in Michigan every sixteen years; in New York. Ohio,
Maryland and Virginia every twenty years.
Illinois Ought to Be a Model Republic with a Constitution
and Laws to Correspond.
AS civilization advances and mankind reach a higher altitude, a
different standard must be adopted than when ruder methods
prevailed. The consequences of the past are reaching forward and
upward to a loftier ideal than was ever thought of in the infancy
of the State.
Illinois ought to be the model republic in our great galaxy of
States, and her Constitution and her laws ought to be characterized
by the greatest wisdom and the highest enlightenment.
Prior to the year 1800, eight or ten keel boats of about twenty-
five tons each, performed all the carrying trade between Cincinnati
and Pittsburg. The first government vessel appeared on Lake
Erie in 1802; the first steamboat was launched at Pittsburg in 1811,
the first on Lake Michigan in 1826, and the first appeared in Chi-
cago in 1832.
Illinois contains 55,405 square rniles or 35,459,200 acres of lands.
It has 10,000 more square miles than New York and Ohio, and
is nearly as large as all New England.
The superintendent of the census in his report in 1860 says:
" Illinois presents the most wonderful example of great, continuous
and healthful increase. In 1830 Illinois contained 157,445 inhabi-
tants ; in 1840, 476,183; in 1850, 851,470; in 1860, 1,711,951.
The gain during the last decade was therefore 860,481, or
101.66 per cent.
So large a population, more than doubling itself in ten years by
the regular course of settlement and natural increase, is without
parallel. The condition to which Illinois has attained under the
progress of the last thirty years is a monument to the blessings of
industry, enterprise, peace and free institutions.
The remarkable healthfulness of the climate seems to more
than compensate for its rigors, and the fertility of the new soil leads
men largely to contend with and overcome the harshness of the
196 CONSTITUTIONAL HISTORY OF ILLINOIS.
The energies thus called into action have in a few years made
the States of the Northwest the granary of Europe; and that sec-
tion of our Union which, within the recollection of living men, was
a wilderness, is now the chief source of supply in seasons of
scarcity, for the suffering millions of another continent."
Hon. Samuel B. Ruggles, of New York, in his address at the
great Canal convention held at Chicago in June, 1863, says:
Ct What human being in his senses, not wholly idiotic or utterly blinded
by political bigotry or lust of political power, could assert that this
God-given, exuberant, and all but virgin West has now reached its
culminating point? For one, I stand awestruck at the immeasur-
able prospect opening before us. I can see nothing smaller,
nothing more diminutive, nothing less stupendous than a yearly
product of cereals to be measured, not as now, by hundreds of thou-
sands, but a result so vast, so solemn, so fraught with consequences,
so momentous to our nation and to the world, that I can but bow
with reverential gratitude before such a wonderful manifestation
of the providence of our great Creator. Never before in human
history did He lay out a garden so wide-spread and fertile; never
before did He provide a granary so magnificent for the use of man.
For what was ancient Sicily, the granary of Home, or the fertile
plains of the Po, or the exuberant valley of the Nile itself, compared
with this, our great continental garden, pouring forth yearly vol-
umes of food so enormous, and yet so inevitably, resistlessly increas-
ing? In view of such a power to feed our race who will venture
to depict or limit the commercial and the political destiny of this
unequaled portion of the earth ? "
And he then adds: " The manifest destiny and high office of this
splended granary, of which this Chicago of yours and of ours is the
brilliant center, stands out as plain as the sun in the heavens.
It is unmistakably marked by the finger of God on these wide-
spread lands and waters, that it is to be our special duty to feed,
not ourselves of the new world alone, but that venerable, moss-
covered fatherland that old father world of ours across the ocean
as the pious Grecian daughter nourished her aged sire; to carry
abundant food, and that too in the truest Christian spirit, to that
over-crowded but under-fed European Christendom, to which we
owe our common origin."
Illinois is now the third State in the American Union, and what-
ever she does will be sure to attract attention. As Mr. Webster
PUBLIC VIRTUE. lOl
onco said, "the age is extraordinary, the spirit that actuates it is
peculiar and marked, and our own relation to the times we live in
and to the questions which interest them, is equally marked and
peculiar. We are placed by our good fortune and the wisdom and
valor of our ancestors, in a condition in which we can act no obscure
part. Be it for honor or dishonor, whatever we do is sure to attract
the observation of the world. As one of the free States among the
nations, as a great and rising republic, it would be impossible for
us, if we were so disposed, to prevent our principles, our sentiments
and our example from producing some effect upon the opinions and
hopes of society throughout the civilized world. It rests, probably,
with ourselves to determine whether the influence of these shall be
salutary or pernicious."
If constitution-making is to be further indulged in in this State,
then let us have the best that can be framed, and let there be abun-
dance of time in which to frame it. Any defects not of a serious
nature can be reached and remedied most speedily by amendments,
as the Constitution now provides; and if provision was made for
submitting several amendments to the people at one and the same
time, there is no reason whatever why every contingency may not
be promptly met at once, and that, too, without delay.
BUT there is one thing that no constitutional convention can
create, no organic law establish, and no law preserve, and that
is public virtue.
To maintain a representative government, men must have the
capacity for self-government and no nation can have and possess
that capacity without they are fitted for it by habits which involve
individual responsibility and perfect honesty and integrity of pur-
pose. The Mexican, Central and South American republics have
constitutions similar to ours. But they do not operate with the
energy, efficiency, tranquillity and good results that we experience.
1 92 CONSTITUTIONAL HISTORY OF ILLINOIS.
The difference is not in the form and plan of their constitutions,
but in the people. They have not yet attained the education, poise,
elevation, virtue and habits which inspire them to co-operate to
make their government as good as possible and to repose with con-
fidence upon its stability and justice. Hence revolts, rebellions or
revolutions need scarcely surprise us. These are cruel and wasteful
educators, however, and should be avoided.
A government influences the people, and they in turn, the gov-
ernment. No government within the range of civilization can
escape the influences of the civilization of the age. Much less so
now, when steam and electricity annihilate the barriers of time and
distance. Our government exists so near the people that the just
complaint of the feeblest citizen can be heard. The people appeal
if need be, to the government, without fear of rebuke, and should be
able to rely upon it with imnly confidence. The government
adapts itself to the people and the people to their government.
The stability of our government must ever depend upon the intel-
ligence and common sense of the people, arid in order that their con-
fidence may not be impaired they must insist upon the conscientious
discharge of every duty incumbent upon their representatives and
a fair and impartial administration of the law by every one of their
Every evasion of law and every perversion of the same is a
crime, and every one guilty of such conduct should be arraigned at
the bar of public conscience, and punished for it. There are men
who are ready to justify every scheme that is formed, every plot
that is laid, and every intrigue that is entered into in order to pro-
mote and achieve party success.
If men commit crimes against the elective franchise, stuff the
ballot box, indulge in wholesale perjury to aid and assist in the
wholesale naturalization of men who are not entitled to that privi-
lege, they should be punished, and that, too, severely, and when
they have been once fairly tried and convicted, then the governor
should be relieved of the constant and increasing importunities of
those who undertake to mitigate and excuse such offenses, ren-
dering his life miserable by personal appeals or petitions such as
have at times beset his pathway within the memory of men still
It should be understood by everybody that "the way of the
transgressor is hard," and that punishment stern and unrelenting
PUBLIC VIRTUE. 193
will bs moted out to all those who undertake to thwart the will of
the people either by fraudulent voting or by making false returns,
or by stealing votes after they have once been deposited in the
If there are in the United States or in this State any high
crimes and misdemeanors left, these acts constitute them.
"We agree with ex-President Cleveland in the views which he
expressed in his recent speech before the Young Men's Democratic
Club at Philadelphia on General Jackson's day, when he says:
" I believe that among our people the ideas which endure and
which inspire warm attachment and devotion are those having some
elements which appeal to the moral sense. "When men are satisfied
that a principle is morally right they become its adherents for all
time. There is sometimes a discouraging distance between what
our fellow countrymen believe and what they do in such a case, but
their action in accordance with their belief may always be confi-
dently expected in good time. A government for the people and
by the people is everlastingly right. As surely as this is true, so
surely is it true that party principles which advocate the absolute
equality of American manhood, and an equal participation by all
the people in the management of their government and in the bene-
fit and protection which it affords, are also right. Here is common
ground, where the best educated thought and reason may meet the
most impulsive and instinctive Americanism. It is right that every
man should enjoy the result of his labor to the fullest extent con-
sistent with his membership in civilized community. It is right
that our government should be but the instrument of the people's
will, and that its cost should be limited within the lines of strict
economy. It is right that the influence of the government should
be known in every humble home as the guardian of frugal comfort
and content, and a defense against unjust exactions, and the unearned
tribute persistently coveted by the selfish and designing. It is
right that efficiency and honesty in public service should not be
sacrificed to partisan greed; and it is right that the suffrage of our
people should be pure and free."
For ages there has been a class of writers and speakers, some of
them ignorant, others dishonest, who have been constantly repre-
senting that governments are able to do, and bound to do, things
which no government can, without great injury to the country, do.
194 CONSTITUTIONAL HISTORY OF ILLINOIS.
Every man of any sense knows that the people support the
government, and if it is a good government, ought to support it.
But the doctrine that it is the business of the government to sup-
port the people is not only unsound but unwise, impracticable and
impossible. On the physical condition of the great body of the
people, government acts, not as a specific, but as an alterative.
Its operation is powerful, indeed, and certain, but gradual and indi-
rect. The business of government is not directly to make the
people rich, but to protect them in making themselves rich; and a
government which attempts more than this is precisely the govern-
ment which is likely to perform less. Governments do not and
can not support the people. A great statesman of England once
yaid: " We have no miraculous power, we have not the rod of the
Hebrew lawgiver, we can not rain down bread on the multitude
from Heaven, we can not smite the rock and give them to drink,
we can give them only freedom to employ their industry to the
best advantage and security in the enjoyment of what their industry
Seasons of distress will come to every country, but they are
almost always beyond government control. When such a period
arrives the effect upon the community and upon the people gen-
erally, is not only very marked, but very peculiar. It often makes
wise men irritable, unreasonable, credulous, eager for immediate
relief, and heedless of remote consequences. There is no quackery
in medicine, in religion or politics, which may not impose even on a
powerful mind when that mind has been disordered by pain'or fear.
At such a time distress inflames the passions and makes tho#e
who are sufferers believe all those who flatter them, and to distrust
those who serve them.
Men should know the truth even though they denounce and con-
demn those who tell it to them.
Mankind do not live in alms-houses, and it is only by labor,
constant and unceasing, and prudence and forethought, that anybody
this side of eternity can keep themselves from want and dependency.
No State will ever be Prosperous under any Constitution
unless the People are Educated.
"~YTT~HAT is it that makes the great difference between country
VV and country?" says the great essayist Macau ley. "Not the
exuberance of soil ; not the mildness of climate; not mines, nor havens,
nor rivers. These things are, indeed, valuable when put to -their
proper use by human intelligence; bat human intelligence can do much
without them, and they, without human intelligence, can do nothing.
They exist in the highest degree in regions of which the inhabitants
are few and squalid and barbarous and naked and starving; while on
sterile rocks, amidst unwholesome marshes and under inclement skies,
may be found immense populations, well fed, well lodged, well
clad, well governed. Nature meant Egypt and Sicily to be the
gardens of the world. They once were so. Is it anything on the
earth or in the air, that makes Scotland more prosperous than
Egypt, that makes Holland more prosperous than Sicily? No; it
was the Scotchman that made Scotland ; it was the Dutchman that
made Holland. Look at North America. Two centuries ago the
sites on which now arise mills, and hotels, and banks, and colleges,
and churches, and the senate houses of flourishing commonwealths,
were deserts abandoned to the panther and the bear. What has
made the change ? Was it the rich mould or the abundant rivers ?
No ; the praries were as fertile, the Ohio and the Hudson were as
broad and as full then as now. Was the improvement the effect
of some great transfer of capital from the old world to the new?
No: the emigrants generally brought out with them no more than a
pittance, but they carried out the English heart and head and arm,
and the English heart and head and arm turned the wilderness into
cornfield and orchard and the hugo trees of the primeval forest
into cities and fleets. Man man is the great instrument that pro-
duces wealth. The natural difference between Carnpagna and
Spitzbergen is trifling when compared with the difference between
a country inhabited by men full of bodily and mental vigor and a
country inhabited by men weak in mental arid bodily decrepitude.''
196 CONSTITUTIONAL HISTORY OF ILLINOIS.
Again he says, " I believe that it is the right and the duty of
the State to provide means of education for the common people.
This proposition seems to me to be implied in every definition that
has ever yet been given, of the functions of a government. About
the extent of those functions, there has been much difference of
opinion among ingenious men. There are some who hold that it is
the business of a government to meddle with every part of the
system of human life; to regulate trade by bounties and prohibi-
tions; to regulate expenditure by sumptuary laws; to regulate
literature by a censorship; to regulate religion by an inquisition.
Others go to the opposite extreme and assign to government a very
narrow sphere of action.
But the very narrowest sphere that ever was assigned to
governments by any school of political philosophy is quite wide
enough for my purpose. On one point all the disputants are agreed.
They unanimously acknowledge that it is the duty of every govern-
ment to take order for giving security to the persons and property
of the community. This being admitted, can it be denied that the
education of the common people is a most effectual means of secur-
ing our persons and our property ? The education of the poor is a
matter which deeply concerns evei\y commonwealth. Just as the
magistrate ought to interfere for the purpose of preventing the
spread of leprosy among the people, he ought to interfere for the
purpose of stopping the progress of the moral distempers which
are inseparable from ignorance. Nor can this duty be neglected
without danger to the public peace."
Mr. Palfrey in his History of New England says, 2d, p. 34, that
" The democratic people of New England, in recent times have sup-
posed it to be no invasion of the citizen's liberty to require him
to submit his children to instruction in reading, writing and arith-
metic, to the end that they may not grow up to be incapable and
shiftless, chargeable and troublesome.
And on similar grounds their predecessors in the primitive age
considered it to be conducive to the public good and unobjectiona-
ble to the individual that he should be saved from the misery to
himself and the mischievousness to his neighbors, of ignorance
respecting morals and religion."
Edward Everett said : u From the first settlement of New Eng-
land, and from an early stage of their progress in many of the
other States, one of the most prominent traits of the character of
RIGHT OF ELECTIVE FRANCHISE. 197
our population has been to provide and to diffuse the means of
The village school house and the village church are the monu-
ments of our republicanism; to read, to write and to discuss grave
matters in their primary assemblies, are the licentious practices of
Educate the people, was the first admonition addressed by Penn
to the colony which he founded.
Educate the people, was the legacy of Washington to the Nation
that he saved. " Educate the people," was the unceasing exhorta-
tion of Jefferson, and in this exhortation is joined the unanimous
voice of all the wise and good of all ages and of both hemispheres.
The Right of American Citizens to be Protected In
Exercising- the Elective Franchise.
A GREAT deal has been said, first and last, in regard to the
meaning and import of the declaration made by those who
lived under the protecting power of the Roman eagle, "Jam a Ro-
The majesty and grandeur of such an utterance must have been
very great, for it signified legions of soldiers and armies of men
who were ready to resent insult, and to conquer and destroy all who
sought to resist the power of the State.
" Then none was for a party,
Then all were for the State;
Then the great man helped the poor,
And the poor man loved the great.
Then lands were fairly portioned,
Then spoils were fairly sold.
The Romans were like brothers
In the brave old days of old.
" Now Roman is to Roman
More hateful than a foe,"
And the tribunes beard the high
And the fathers grind the low.
108 CONSTITUTIONAL HISTORY OF ILLINOIS.
As we wax hot in faction,
In battle we wax cold.
Wherefore men fight not as they fought
In the brave old days of old."
These were times when men were chained to chariot wheels to
grace a Roman holiday, and mothers smiled to see " their infants
quartered with the hands of war," and when it only required " a
monarch's voice to cry havoc and let slip the dogs of war."
Contrast this condition of things with that of an American, and
let us inquire what it is to bo an American citizen.
It is a greater honor and a far more lordly position than that
which was ever enjoyed by any of the imperial hosts that divided
" all Gaul into three parts," or who set up their mile-stones in the
sea-girt isle of the Britons.
The strongest government is that in which there is the assertion
of personality. That is the realization of the freedom of the people.
That is not necessarily a strong government which is identified
with arbitrary rule or arbitrary power. That government is the
strongest which develops in the hearts of the people the dignity
and maintenance of law, the institution of rights, the realization of
For this it is clothed with power and with majesty on earth,
such as never existed either in Rome or any land over which her
imperial eagles ever flew.
WHO IS AN AMERICAN?
" He is an American who, leaving behind him all his ancient preju-
dices and manners, receives new ones from the new mode of life he
has embraced, the new government he obeys, and the new rank he
holds. He becomes an American by being received in the broad
lap of our great Alma Mater. Here individuals of all nations are
melted into a new race of men, whose labors and posterity will one
day cause great changes in the world. Americans are the Western
pilgrims who are carrying along with them that great mass of arts,
sciences, vigor and industry, which began long since in the East;
They will finish the circle." Letters of American Farmer.
The practical operation of popular institutions of government
provides, in innumerable ways, a demand for every species of intel-
lectual effort, not merely within the circle of a capital, but through-
out the land. In short, wherever man has been placed by Provi-
RIGHT OF ELECTIVE FRANCHISE. 199
denco endowed with natural capacities of improvement, there the
genius of the republic visits him, with a voice of encouragement
and hope. Every day he receives from the working of the social
system some new assurance that he is not forgotten in the multitude
of the people ; he is called to do some act, to assert some right, and
to enjoy some privilege ; and he is elevated by this consciousness of
his social importance from the condition of the serf or the peasant
to that of the freeman and the citizen. Why, then, should not the
humblest citizen be protected in exercising his right to vote, even
if it takes armies and navies to accomplish it?
" All elections shall be free and equal " is the standing procla-
mation in our Bill of Rights and it seems very strange to us, at
this day and age of the world, that while all political parties admit
the supreme importance of regulating and protecting the elective
franchise, and make it a part of their platforms, there are so many
who are utterly opposed to any laws by which the power of the
government, and especially that of the National Government shall
be invoked to make such laws effective. It is only a little over
thirty years since the doctrine that we had no National Government
at all, but that we were a mere compact of States, and that any acts
of the National Legislature might be disregarded, and that any State
might secede, and that there was no power to coerce them to sub-
mission, was universally entertained by most of the Southern people,
and by a large and powerful party at the North who sympathized
with them. But these doctrines were declared to be erroneous,
after referring them for settlement to the dread arbitrament of war,
and we had supposed that we should hear no more of them. But
to-day these same ideas are revamped and put forth again, quite as
offensively as before, and a great ado is being made over what is
called "The Force Bill," a plain and simple bill to regulate the
elective franchise at National elections, and of protecting those who
are entitled to vote, in voting.
At the outbreak of the war of the rebellion the cry which went
up was " coercion " and the horrors of " coercion" were preached
throughout the length and breadth of the land; to-day it is " The
Force Bill," and men stand aghast at the audacity of those who favor
that bill or anything whatever like it. It is the same old cry, and
men may apologize for such a course of conduct as much as they
please, but it is an attempt to paralyze the arm of the Government
200 CONSTITUTIONAL HISTORY OP ILLINOIS.
in its attempt to protect the freedom of elections and to allow
terrorism to rule supreme.
The United States is not only a government but a great National
government, and the only government in this country that has the
character of nationality. It has jurisdiction over all the general
legislation and sovereignty which affect the interests of the whole
people equally and alike, and which require uniformity of regula-
tion and laws, and it can call to its support the entire power of the
Nation to enforce this jurisdiction, and the " proposition," as Mr.
Justice Miller said in the case of Ex Parte Yarbrougb, 110 U. S. 658,
" that the General Government has not the power to protect the
elections upon which its existence depends from violence and force,
is supported by the old argument, often heard, often repeated, and
in this court never assented to, that when a question of power of
Congress arises, the advocate of the power must be able to place
his finger on words which expressly granted it.
It destroys at one blow, in construing the Constitution of the
United States, the doctrine universally applied to all instruments in
writing, that what is implied is as much a part of the instrument as
what is expressed. This principle, in its application to the Consti-
tution of the United States, more than to almost any other writing,
is a necessity by reason of the inherent inability to put into words
all derivative powers, a difficulty which the instrument itself recog-
nizes, by conferring upon Congress the authority to pass all laws
necessary and proper for carrying into execution the powers expressly
granted, and all other powers vested in the government or any
branch of it by the Constitution."
"The prejudices and apprehension as to the central govern-
ment which prevailed when the Constitution was adopted," said
Mr. Justice Swayne, in 16 Wallace, 128, "were dispelled by the
light of experience. The public mind became satisfied that there
was less danger of tyranny in the head than of anarchy and tyranny
in the members. Before the war ample protection was given
against oppression by the Union, but little was given against wrong
and oppression by the States."
We insist, in the language of Judge Harlan in 109 U. S. 26-53,
"that the National Legislature may, without transcending the limits
of the Constitution, do for human liberty and the fundamental
rights of American citizenship what it did, with the sanction of the
EIGHT OF ELECTIVE FRANCHISE". 201
United States Supreme Court, for the protection of slavery and the
rights of the masters of fugitive slaves."
We think that human liberty and the rights of an American
citizen in exercising the elective franchise, are entitled to just as
much consideration as that of a slave-holder for his slave when he
hunted them all over the United States, and that the election bill
now pending before the United States Congress is no more a force
bill than any other bill which provides a penalty for the commis-
sion of a crime.
The idea that it is the business of the State governments, and
those alone, to provide laws for the protection of American citizens
in casting their votes at National elections and for National repre-
sentatives is, we submit, simply absurd, and is the last lingering relic
of the confederate idea of our government which has come down
to us from pro-slavery days "befo the wah."
Is it true that National citizenship of itself has no attribute of
any practical value.
Is it true that the higher the source and the more inalienaVe
the rights of man, the less they are within the protection afforded
by National citizenship and the National Constitution and the more
they are exposed to invasion by the State ?
We believe that our Government is a National Government, and
that the States should assist that government in upholding it in the
exercise of all its just powers, and that in the language of our Bill
of Rights, " All elections shall be free and equal." These words
should be something else than "sounding brass and tinkling
cymbals," and, if it is necessary to call a constitutional convention
to give them force and effect, then reckon this as one of the needs
of a convention.
The basis of all constitutions and all laws must be eternal justice,
and all the rights of all the citizens of this republic must be abso-
lutely equal before the laws.
The days of provincialism are over in this country, and. as John
Bright said in one of his great speeches at Birmingham, Dec. 18,
1862, upon America, "I can not believe that civilization in its
journey with the sun will sink into endless night in order to gratify
the ambition of the leaders of this revolt, who seek to
' Wade through slaughter to a throne
And shut the gates of mercy on mankind.'
I have another and a far brighter vision before my gaze. It
may be but a vision, but I will cherish it. I sec one vast confedoru-
202 CONSTITUTIONAL HISTORY OF ILLINOIS.
tion stretching from the frozen North in unbroken line to the glow-
ing South, and from the wild billows of the Atlantic westward to the
calmer waters of the Pacific main, and I see one people, and one
language, and one law and one faith, and over all the wide conti-
nent, the home of freedom and a refuge of the oppressed of every
race and of everv clime."
WHEN the foundations of this republic were laid the world
was tilled with kings and despotism was supreme. When
the first Constitution of this State was formed, steamboats had but
just begun to run on the Hudson river, locomotives had been just
heard of in England, and it took a month to cross the Atlantic.
Now behold the change!
"Power has come to dwell with every people, from the Arctic Sea
to the Mediterranean, from Portugal to the borders of Russia.
From end to end of the United States the slave has become a free
man, and the various forms of bondage have disappeared from
European Christendom. Abounding harvests of scientific discovery
have been garnered by numberless inquisitive minds, and the wildest
forces of nature have been taught to become the docile helpmates
The application of steam to the purpose of travel on land and
on water, the -employment of a spark of light as the carrier of
thought across continents and beneath oceans, have made of all the
inhabitants of the earth one society. The morning newspaper
gathers up and brings us the noteworthy events of the last four
and twenty hours, in every quarter of the globe.
All States are beginning to form parts of one system.
The ' new nations,' which Shakspeare's prophetic eye saw rising
on our eastern shore, dwell securely along two oceans, midway
between their kin in Great Britain, on the one side, and the oldest
surviving empire on the other.
More than two thousand years ago it was truly said that the
nature of justice can be more easily discerned in a State than in one
It may now be studied in the collective state. The ignorance
and prejudices that come from isolation are worn away in the con-
flict of the forms of culture. We learn to think the thought, to
hope the hope of mankind. Former times spoke of the dawn of
civilization in some one land; we live in the morning of the world.
Day by day the men who guide public affairs, are arraigned before
the judgment seat of the race. A government which adopts a
merely selfish policy is pronounced to be the foe of the human
family. The statesman who founds and builds up the well-being
of his country on justice, has all the nations fora cloud of witnesses,
and as one of our own poets has said, l The linked hemispheres
attest his deed.'
He thrills the world with joy, and man becomes a nobler spirit
as he learns to gauge his opinions and his acts by a scale commen-
surate with his nature."
The days of war are over, and bright and tranquil years of peace
have succeeded. In no country that exists beneath the sun do we
mark such progress in all the arts of life, such toleration of domes-
tic peace, such security for liberty and temperate freedom as we
behold here. There is no place in all this broad land so well fitted
to excite in our minds sad yet grateful feelings as the spot on which
we are now assembled.
It was at the fearful price of one whose mortal remains repose
in yonder vale, but whose memory is cherished by the inhabitants of
the earth with love and affection, that justice and freedom were
secured. No one since the days of the inspired lawgiver, who after
long communion with the Ruler of the Universe descended from
the mountain tops of Sinai with awful aspect and shining face, has
ever exerted so great an influence upon the human race, as he who
fell beneath the blows of an assassin while overborne by the weight
of his country's cares.
A few years ago he lived and moved among us with no preten-
sions to greatness, but a leader of acknowledged power and of unsur-
passed eloquence. He was a member of this bar, and scores M'ho
hear me have met him in the court room; have traveled with him
on the circuit; have tried cases with and against him and knew
him well. He was born nine years before the adoption of our first
Constitution, and knew of the efforts put forth at that time to make
this a slave State. Soon after he attained his majority, he took
part in the legislation of his adopted State ; was one who by his
vote and influence helped to remove the capital from Vandalia to
204 CONSTITUTIONAL HISTORY OF ILLINOIS.
this city; was well acquainted witli Ninian Edwards, Jesse B.
Thomas, Elias Kent Kane, Governor Coles, Governor Bond, Daniel
P. Cook, Judge Lockwood and all of that class of persons who took
part in the great struggle for freedom on our soil in 1822. Ever} 7
libre of his being was inwrought with sympathy for the poor, the
down-trodden arid the oppressed, and his life was as grand as any
of the holy prophets of old.
He was a natural born leader of men, and was known in his own
region of the world as the " rail splitter," long before his fame had
extended to that of neighboring States.
He took ground against slavery at a very early period, and never
ceased his opposition to it until his lips were closed in death.
On the soil of Illinois occurred in 1858, before the breaking out
of the war, when the slave-holders were seeking to extend slavery
into the new States beyond the Mississippi, one of the greatest dis-
cussions upon constitutional law and the genius of our institutions
that ever occurred in the history of this country. It was on the
17th of June, 1858, that Mr. Lincoln struck the key note of oppo-
sition to slavery in this country, when he declared in yonder State
House that, "a house divided against itself can not stand. I
believe this government can not endure permanently half-slave and
half-free. I do not expect the Union to be dissolved. I do not
expect the house to fall, but I do expect it will cease to be divided.
It will become all one thing or all the other."
No proclamation was ever sent forth by any commander of
armies or ruler of nations which was attended with such broad and
lasting consequences. If it had been inspired from on high it
could not have been attended with more force or carried with it
The first sentence was the announcement of an absolute truth
embodied in a plain and homely axiom. The other portion of the
speech which we have quoted was uttered as his belief and expec-
tation, but it was the truth of prophesy itself. It went like a pro-
cession over the land and over the sea. It was like a firebell in the
night time and the contest for supremacy between the hosts of
slavery and of freedom commenced from that hour, and never
ceased until white-winged peace folded her pinions beneath the
app'e tree at Appomattox.
The generation to which he belonged is fast passing away, but
let it be here recorded that no one ever left a sweeter memory or a
brighter example to his countrymen than Abraham Lincoln, the
great lawgiver of Illinois.
k 'And, now, we have done. The sceptre may pass away from us.
Unforeseen accidents may derange our most profound schemes of
policy, victory may be inconstant to our arms. But there are tri-
umphs which are followed by no reverse. There is an empire
exempt from all natural causes of decay. Those triumphs are the
pacific triumphs of reason over barbarism; that empire is the
imperishable empire of our arts, our literature and our laws."