USA > Illinois > Illinois in 1818, 2nd ed > Part 25
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following narrative is based mainly on this "Journal" and on the text of the constitution. Since both are comparatively brief documents, it has not been thought necessary to give detailed citations, except in a few cases where it seemed advisable to fix the source of the quotation .- Ed.]
280"Journal," p. 3, in Illinois State Historical Society, Journal, 6:355; James, Territorial Records, 55; letter of Edwards, January 18, 1818, and one with no date in Chicago Historical Society manuscripts, 49:235; 51 :484.
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And also, to receive and report such other evidence of the actual population of the territory as to them shall seem proper." Kane himself was made chairman of this committee as he had been also of the credentials committee. On the following day he re- ported first for the latter committee, a simple matter as there appear to have been no contests over seats, and then presented the census returns by counties as ascertained from the secretary's office. The lists totaled 40,258, an increase of 5,638 over the first reports in June. Besides the 1,281 for Franklin county which had not been reported on before, this increase was divided among the different counties in numbers varying from 16 to 1,847. In Bond, Randolph, Johnson, and Pope the increments were less than a hundred, while in Madison, St. Clair, Gallatin, and Crawford they were above five hundred. These additions were, in general, the results of the supplementary census which appears to have been taken in all but two counties at least.281 Only four of these additional returns are now available but they throw some light on the character of the census. The Wash- ington county commissioner evidently went into outlying dis- tricts where the people had not previously been counted, and even visited and counted those in the western part of Edwards county, who were widely separated from the main settlements near the Wabash. In the returns from Jackson, Gallatin, and Crawford, however, it is clear that it was the newcomers who were being counted, and the fact that very few among the additional names are to be found in the lists of old settlers in the county histories would indicate that many were included who were merely pass- ing through the county. Among the names in the additional census of Gallatin is that of C. Trimmer, who figures as the head of a family of fifty. This entry refers to a party of Eng- lish emigrants on its way to Birkbeck's colony in Edwards county. The discrepancy for several of the counties between this census and that of the United States in 1820 is of course increased by the supplementary figures.
281 In 1819 the legislature passed "AN ACT for the relief of persons taking additional census," which provided extra payment ranging from five to thirty dollars for the commissioners of all the counties except Bond, Johncon, and Edwards. Laws of 1819, p. 347.
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The convention appears to have raised no question as to the adequacy of the census. At any rate, the "report was read, con- sidered and concurred in." After postponing the consideration of rules until the following day, the convention was ready to decide the all important question of the expediency of advancing to statehood. Mr. Prickett offered a resolution declaring that - as "there are upwards of 40,000 inhabitants" in the territory, "it is expedient to form a constitution and state government." A motion by Kane to postpone consideration of the resolution until the following day was voted down; the resolution was then considered and passed. Judging from this prompt action it would seem that the opponents of statehood, if there were any in the convention, must have numbered only a small minority and must have recognized the futility of any opposition. It is doubt- ful if Kane's motion to postpone consideration of the resolution for a day was due to any desire to check the statehood program. Had he entertained any such designs, he was too shrewd to have missed the opportunity afforded by the character of the census and especially by the inclusion of the estimated population at Prairie du Chien. Had these figures been omitted, as they should have been under the provisions of the enabling act, the totals would have been below the requisite forty thousand.282 As chairman of the committee on the census, Kane might, had he so desired, have presented a report which at least would have made the convention hesitate.
The alternative procedure of providing for a second conven- tion to frame the constitution does not appear to have been con- sidered at all, for immediately after the adoption of the "ex- pediency" resolution, provision was made for "a committee of fifteen, one from each county . . to frame and report to this convention a constitution for the people of the territory of Illinois." The chairman of this committee was Leonard White of Gallatin but, according to all the evidence, the directing spirit was Elias Kent Kane. The report of the committee, however, certainly did not represent the latter's wishes in all particulars. The committee took a week in which to prepare its draft of the
282On this whole discussion of the census see above, p. 238-241; compare "Journal," p. 6, 7, and Flower, English Settlement, 96, 99.
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constitution; the convention in the interval considered and adopted an elaborate body of rules of procedure, provided for the printing of the journal and the draft, and contracted for sta- tionary.288 On the sixth Mr. Gard offered a resolution for a com- mittee "to draft an ordinance to establish the bounds of the state of Illinois and for other purposes;" and Mr. Hubbard offered another for a committee "to draft an ordinance acknowl- edging and ratifying the donations made by an act of congress passed in April, 1818." On motion of Mr. Kane consideration of both of these resolutions was postponed until the following day when the first was dropped and for the second was substi- tuted, again on motion of Mr. Kane, another resolution directing the committee of fifteen "to consider the expediency of accept- ing or rejecting the propositions made to this convention by the congress of the United States, and if in their opinion it shall be expedient to accept the same, it shall be their further duty to draft an ordinance irrevocable, complying with the conditions annexed to the acceptance of such propositions in the act for the admission of this territory in the union, and report thereon."284
On the same day, the seventh, "Mr. Kane presented two peti- tions signed by sundry inhabitants of Randolph county, one praying that this convention shall declare in the constitution to be formed that the moral law is the basis of its structure, and acknowledge therein an universal parent. The other praying that this convention may declare the scriptures to be the word of God, and that the constitution is founded upon the same." These petitions emanated from a sect of Covenanters, who had established themselves in Randolph county. They were referred to a select committee but no attention was paid to them in the framing of the constitution and, according to Governor Ford,
283Reynolds, My Own Times, 211; Ford, History of Illinois, 24; Brown, "Early History of Illinois," in Fergus Historical Series, no. 14:86-87; John F. Snyder is an authority for the statement that "Judge Breese, who was then a law student in Elias K. Kane's office in Kaskaskia, said the Constitution . was written in Mr. Kane's office some time before the meeting of the convention." Illinois State Historical Society, Transactions, 1905, p. 360 note. Breese did not arrive in Illinois, however, until several months later. Samuel Breese to Kane, October 20, 1818, in Chicago Historical Society manuscripts, 52:33 ; Moses, Illinois, I :455.
24"Journal," p. 13, in Illinois State Historical Society, Journal, 6:365.
ELIAS KENT KANE [From original owned by Illinois State Historical Library}
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the Covenanters for many years "refused to work the roads un- der the laws, serve on juries, hold any office, or do any other act showing that they recognize the government." The only excep- tion was in the convention election of 1824 "when they voted for the first time, and unanimously against slavery."285
On Saturday and Monday, the eighth and tenth, the conven- tion marked time. On the eleventh Mr. Bankson announced the death that morning of his colleague, John K. Mangham of Washington. The members of the convention agreed to wear crape on the left arm for thirty days in testimony of their respect for Mr. Mangham's memory, and a committee was appointed to make arrangements for the funeral. This took place late in the afternoon "attended by the members of the Convention and the citizens of the place generally." Two days later a committee was appointed to inquire into the expediency of ordering an election to fill the vacancy but the committee reported "that an election could not be effected in time to answer the purpose of giving the said county their full representation in this conven- tion before the same will have risen." This report was con- curred in by the convention and no election was held.
The draft of the constitution was finally reported by the com- mittee of fifteen on Wednesday the twelfth. It consisted of a preamble and eight articles, the greater part of which had been copied from the constitutions of neighboring states. Periods of time, ages, and amounts of salary were left blank to be filled in by the convention. Accompanying the draft was an ordinance accepting the federal donations and agreeing to comply with the requisite conditions; this was adopted by the convention with- out change. The day after the introduction of the draft of the constitution the convention took it up for consideration, section by section, and made various changes. This "first reading" took two and a half days and at its conclusion a committee of five was appointed, none of whom had served on the committee of fifteen, to suggest additional articles or sections which it might consider necessary to complete the draft of the constitution. The
286Ford, History of Illinois, 25; "Journal," p. 13, in Illinois State His- torical Society, Journal, 6:365. See also p. 66 of the "Journal" on a similar petition, presented near the close of the session of the convention.
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work of this committee was primarily to prepare a schedule for putting the new government into operation and that same day presented its first report on the temporary apportionment of senators and representatives.
On Monday the seventeenth, the second reading of the consti- tution was begun and the first five articles were considered. Tuesday morning the apportionment proposed by the committee of five was read the second and third times, amended, and adopted, after which the second reading of the constitution was continued and completed. A schedule of sixteen sections was then reported by the committee, read the first time, and consid- ered section by section. The committee also presented at this time a "separate report relative to a permanent seat of govern- ment." The morning of the nineteenth was taken up with various reconsiderations, and in the afternoon the convention began the third reading of the draft "as amended and engrossed." Some time was spent the next morning considering resolutions relative to the location of the capital, after which the third reading of the constitution was continued and completed. Various addi- tional sections proposed from the floor were then considered. On August 21 a "committee of enrolments" was appointed, con- sisting of Kane, Stephenson, and Cullom, the schedule received its second and third readings, and various resolutions relating to qualifications for voting at the first election and to the location of the seat of government were considered. "A committee of revision" consisting of Lemen, Omelveny, and Kane was ap- pointed the next day, Saturday, the twenty-second, "to examine the draft of the constitution as amended and passed, and make report to this convention on next Monday morning." This com- mittee "corrected sundry inaccuracies" and recommended the expunging of one entire section. Its report, presented by Kane, was concurred in by the convention, but even after that several changes were made in different sections by reconsideration. A resolution relative to the seat of government was adopted on the twenty-fourth, and finally on Wednesday, the twenty-sixth, the constitution was signed and the convention adjourned.
The preamble of the draft and article one, which deal with the
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distribution of the powers of government into three departments, follow in the main the wording of the constitutions of Indiana and Kentucky; the preamble contains the statement of the boundaries assigned by congress. These sections were adopted by the convention with only slight changes.
The second article, dealing with the legislative department fol- lows very closely the constitution of Ohio. Section one provides for a bicameral legislature, and sections two to six inclusive deal with the election and qualifications of members. At the first reading the blanks were filled in to make the elections biennial on the first Monday in August but this necessitated a special pro- vision for the date of the first election. At the second reading the first Thursday of September, 1818 was selected, but some of the members felt that this was too early. As a compromise the third Thursday was finally adopted almost unanimously. Representatives were required to be twenty-one years of age, citizens of the United States, and residents in the district repre- sented for twelve months preceding the election. For senators, the requirements were the same except that the age limit was twenty-five and they were required to "have paid a state or county tax." The convention added the latter qualification for representatives also, at the third reading. The terms of senators were fixed at four years, one-half to be elected biennially. Both senators and representatives were to be apportioned according to the number of white inhabitants. The number of representatives was to be not less than twenty-seven nor more than thirty-six until the population should reach a hundred thousand, and the number of senators was never to be less than one-third more than one-half the number of representatives.
The seventh section of article two originally provided that each house should choose a speaker, but this was changed on third reading to except the senate, after sections establishing the office of lieutenant governor had been added to another article. Sections eight to seventeen, inclusive, dealing with procedure in the legislature were of the usual sort and received only verbal changes at the hands of the convention. Section eighteen, how- ever, which dealt with salaries caused a bitter contest. After the
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blanks had been filled, at first reading, the section prohibited tne legislature from allowing, before 1824, annual salaries greater than $1,250 for the governor and $500 for the secretary of state, while the pay of members of the legislature was not to exceed two dollars per day. On a second reading the limit for the sec- retary of state was raised to $600 and that for the members of the legislature to three dollars per day, but at third reading, on motion of Kane and Messinger, all reference to the salaries of members of the legislature was dropped. Had it not been for a controversy over the salaries of justices of the supreme court, provided for in section five of article four, it is probable that no further changes would have been made in this section. At sec- ond reading the salaries of justices were fixed at $1,250, the same amount as had been allowed the governor, but at third reading this sum was reduced to $1,000. The following day a motion for reconsideration of the section limiting the governor's salary was defeated by a tie vote but three days later it was car- ried, 16 to 14. The limit was then reduced from $1,250 to $1,000 by a vote of 17 to 14. That this action was taken in re- taliation for the reduction of the salaries of justices is evident from the fact that nine men who voted for reduction in each case opposed it in the other. Enough other members, however, were in favor of economy to carry both votes.
Two sections of article two of the draft dealing with "min- isters of the gospel" are of special interest because of the exten- sive discussion of the political activities of clergymen, in the Intelligencer during the later territorial period. A writer who signed himself "A foe to religious tyranny" had roundly de- nounced the political sermons of certain ministers and their theory that only "professors of religion" should be elected to of- fice. In the first draft of the constitution, section twenty-six provided that: "Whereas, the ministers of the gospel are by their professions, dedicated to God and the care of souls, and ought not to be diverted from the great duties of their functions : Therefore, no minister of the gospel or priest of any denomina- tion whatever, shall be eligible to a seat in either house of the legislature." As a corollary to this was section thirty-three:
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"No minister of the gospel, or priest of any denomination what- ever, shall be compelled to do militia duty, work on roads or serve on juries." The introduction of these sections called forth a communication in the paper of August 12, addressed to "The members of the "Illinois Convention, now in session." "It is with peculiar pleasure," said the writer, "I learn that the committee - appointed to draft a Constitution have embodied in it a pro- vision to exempt ministers of the Gospel from the servile and arduous drudgery of legislation, and of electioneering to procure themselves seats in the legislature. This provision is extremely humane and is not without precedent in other constitutions.286 The flesh of many of these preachers is very willing but their spirit is truly weak There did appear amongst them a spirit that would have enabled the people to have filled the Convention with ministers, MINISTERS of the GOSPEL !! . But I would humbly suggest that said provision is not sufficiently ex- tensive to administer complete relief. Why not dis- qualify preachers of the gospel from holding any civil office?" A motion to strike out section twenty-six which was made dur- ing the first reading was voted down, but later on reconsideration both sections were dropped from the constitution.
Another section of the second article of the draft which failed to meet with the approval of the convention was number thirty- five. This prohibited the removal of county seats without "full compensation . to the persons injuried [sic] by such re- moval" and also prohibited the organization of new counties "un- less a petition shall be presented to the legislature, signed by at least two hundred qualified voters, residing in the bounds of the district applying to be laid off." At the first reading this whole section was stricken out, and an attempt later to introduce into the schedule a section dealing with the organization of counties was also a failure.
Section twenty-four of article two as originally drawn pro- vided for annual sessions of the legislature but at second reading these were changed to biennial. The first session was to begin
286 Similar sections are to be found in the New York constitution of 1777, section thirty-nine, and the Kentucky constitution of 1799, article eight, sec- tion one. Thorpe, Constitutions, 5:2637; 3:1280.
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"on the first Monday of October next" and others "on the first Monday of December next ensuing the election." Reasons which may have influenced the convention to decide on biennial instead of annual sessions are indicated in a "letter from an in- habitant of St. Clair county, to a Member of the Convention," an extract from which was published in the Intelligencer of August 19. After declaring "that the lapse of a few months will not furnish a sufficient test of the qualities of the theory or practicable operation of the laws passed at any one session," the writer illustrated his point by calling attention to the activity of the territorial legislature "enacting at one session and repealing at the next, until our laws on some subjects have become so confused, that to use a common adage, 'a Philadelphia lawyer' could not tell what these acts mean, nor even how much of them is in force." Another advantage pointed out was the saving of expense and this was probably the one which appealed most strongly to the members of the convention.
A census of all "white male inhabitants above the age of twenty-one years" to be taken periodically, was ordered by sec- tion thirty-two of article two of the draft. At first reading this provision was amended so as to require an enumeration in 1825 "and every fifth year thereafter of all the free white inhabitants." At second reading, 1820 was substituted for 1825 as the date of the first census, and the superfluous word "free" before "white" was stricken out. In this form the section be- came number thirty-one of the final constitution. Just why the convention chose to order a duplication of the decennial census of the United States it is difficult to understand.
Two other sections of article two dealing with elections are of special interest. Section twenty-eight gave the suffrage to "all white male inhabitants, above the age of twenty-one years, hav- ing resided in the state six months next preceding the election ;" the second provided that "all votes shall be given vive voce until altered by the legislature." Opposition to viva voce voting on the part of "Agis" has already been noted and the adoption of this section was followed by appeals to the legislature to change the system to voting by ballot-appeals which were heeded at
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the second session of the first general assembly in 1819. The provision allowing "inhabitants" to vote regardless of whether or not they were citizens may have been a result of thoughtless copying of the Ohio constitution. Indiana two years before had limited the franchise to citizens, probably as a result of the in- crease in the number of foreign-born inhabitants in the fourteen years which had passed since the Ohio constitution was drawn up. Aliens had been allowed to vote and even to hold office in Illinois during the territorial period and it is possible that the convention deliberately decided to continue the practice. The adoption of this section stored up trouble for the future, and called forth the following request from a critic of the conven- tion: "We would wish every member of the late convention of Illinois to declare publicly in some newspaper printed in the state whether it was his intention to extend the elective franchise in this state to the subjects of foreign powers who had never complied with the naturalization laws of the U. S."287
Article three of the constitution, dealing with the executive, was also copied largely from the constitution of Ohio. Sections two and three as finally adopted provided that the governor should "be chosen by the electors of the members of the general assembly," and should hold office four years but be ineligible for "more than four years in any term of eight years." He was re- quired to be thirty years of age, a citizen of the United States for thirty years, and a resident of the state for two years preceding the elections. When the blanks were filled in at the first reading the period during which the governor must have been a citizen was fixed at ten years but at second reading this was lengthened to thirty years. Sections four to ten inclusive, giving to the gov- ernor the usual powers and duties, remained essentially as they were in the draft.
Section eleven of article three provided for a sheriff and a coroner in each county to be elected biennially by those "quali- fied to vote for members of the general assembly." The draft provided that no sheriff should be eligible for more than "four
287"Journal," p. 21, in Illinois State Historical Society, Journal, 6:373; Intelligencer, October 14, November II, 1818.
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years in any term of six years," but this feature was stricken out at third reading.
The "speaker of the senate" was empowered by section thir- teen of article three of the draft to exercise the powers of gov- ernor in case of a vacancy in that office, "unless the general as- sembly shall provide by law for the election of a governor to fill the vacancy." When the committee of five drew up its sched- ule, however, it embodied therein five sections copied from the Indiana constitution providing for a lieutenant governor who should be elected in the same manner and have the same qualifi- cations as the governor, and who should be speaker of the senate. An unusual provision allowed him to debate and vote in com- mittee of the whole, "and whenever the senate are equally di- vided, to give the casting vote." On motion of Mr. Kane, these sections were taken from the schedule and inserted in article three just before section thirteen. That section was then renum- bered eighteen and the words "lieutenant-governor" substituted for "speaker of the senate."
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