USA > Illinois > Illinois in 1818, 2nd ed > Part 26
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Instead of giving a veto power to the governor as had been done in most other state constitutions, the draft provided in sec- tion fifteen of article three for a council made up of "the judges of the supreme court or a major part of them together with the governor," which should "revise all bills about to be passed into laws" and return those of which it disapproved, together with its objections, to the house in which they had originated. This section was copied almost verbatim from section three of the New York constitution of 1777. At first reading a substitute was adopted by which the veto power was given to the governor with the provision that bills might be passed by a two-thirds vote in spite of his objections. Between the first and second readings, however, the convention was won over to the New York system and at second reading the original section was restored with a provision allowing bills to be passed over the objections of the council of revision "by a majority of all the members elected." This was an important departure from the New York arrangement, which required a two-thirds vote and thus allowed the judges to interfere seriously with legislation.
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The incorporation of this system in the Illinois constitution prob- ably reflects the feeling against the absolute veto power of the territorial governors. The suggestion doubtless came from Kane, who was a native of New York and must have been familiar with its constitution.
The last section of article three of the draft directed the . governor to "nominate and by and with the advice and consent of the senate appoint a secretary of state." It was accepted without a change by the convention, and at the close of the third reading, two other sections, twenty-one and twenty-two were added providing for additional officers. The state treasurer and public printer were to be elected biennially by joint vote of both houses of the legislature. All other officers whose appointments were not otherwise provided for, were to be appointed by the governor, except that "inferior officers whose jurisdiction may be confined within the limits of the county, shall be appointed in such manner as the general assembly shall prescribe." With the exception of the provision for a public printer, all these sec- tions were copied from the Kentucky constitution. The general appointive power granted to the governor by section twenty- two was largely nullified by section ten of the schedule, which as amended and adopted the following day, provided that : "An auditor of public accounts, and an attorney general and such other officers as may be necessary may be appointed by the general assembly, whose duties may be regulated by law." The effect of this provision was to allow the legislature to play fast and loose with the appointive power of the governor. The explanation, according to Governor Ford, is that "the Conven- tion wished to have Elijah C. Berry for the first auditor of public accounts, but it was believed that Governor Bond [whose election was assured] would not appoint him to office."288
The subject of the judiciary had been so extensively discussed during the territorial period, that the committee of fifteen appar- ently felt competent to draft article four dealing with it without reference to other state constitutions. The judicial power was
288"Journal," p. 63, in Illinois State Historical Society, Journal, 6:415; Ford, History of Illinois, 26.
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vested in a supreme court and such inferior courts as the legis- lature might establish. The supreme court, consisting of a chief justice and three associate justices,289 was to have appellate juris- diction only, except in certain special cases. All justices and judges were to be appointed by joint ballot of the two houses of the legislature. The first appointees were to hold office dur- ing good behavior until the end of the first legislative session begun in 1824, and until that time the supreme court judges were to "hold circuit courts in the several counties." After that period the justices were to "be commissioned during good be- havior" and were not to "hold circuit courts unless required by law." The provision for new elections by the legislature of 1824 was doubtless inserted in order that advantage might be taken of "any accession of talent" during the interval.290 The salaries of justices during the temporary appointment were first fixed at $1,250 and then reduced to $1,000. For the later permanent appointments, all the judges were to "have adequate and competent salaries." Apart from the question of salaries the only change made by the convention in the article on the judiciary was in the last section. This provided in the draft, that the governor should "nominate, and by and with the advice and consent of the senate, appoint a competent number of jus- tices of the peace in each county." At the third reading, how- ever, the section was stricken out and a substitute was finally adopted providing for the election of justices of the peace in each county. Four days later, August 24, this action was recon- sidered, "on the motion of mr. Kane" and another substitute adopted arranging for the justices to "be appointed in each county in such manner . as the general assembly may direct."
Article five dealing with the militia directed that it should consist of "all free male able bodied persons, negroes, mulattoes and Indians excepted, resident in the state, between the ages of 18 and 45 years, except such persons as now are or hereafter may be exempted by the laws of the United States, or of this
280 The number of associate judges might be increased after 1824.
200 Intelligencer, August 26, 1818.
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state." Persons "conscientiously scrupulous of bearing arms" were not to "be compelled to do militia duty in time of peace, provided such person or persons shall pay an equivalent for such exemption." Regimental officers and all officers below them, staff officers excepted, were to be elected by the men of their several organizations, and brigadier and major generals "by the officers of their brigades and divisions respectively." This ar- ticle, which was abridged from the militia article of the Indiana constitution, received only verbal changes at the hands of the convention, with the exception of the addition at the third reading of a section declaring the militia except in certain cases exempt "from arrest during their attendance at musters and elections of officers, and in going to and returning from the same."
The article of the draft which suffered the most radical changes at the hands of the convention was the sixth, dealing with slavery, and in view of the character of the campaign for members of the convention and the great importance of the issue, the consideration of this article is of special interest. The discussions of slavery in the Intelligencer had not ceased with the elections, nor even with the assembling of the convention. The issue of August 12, the day on which the draft was reported, contained a long communication from "Pacificus" addressed "To the honorable members of the convention of the Illinois Terri- tory." This writer professed to be opposed to absolute slavery but was very solicitous about the welfare of "a large and respect- able portion of the inhabitants of this territory who are anxious to be permitted to live as they have hitherto done-to retain in their families those whom they have brought with them into the country, perhaps raised among their children, or purchased with their money for the purpose of relieving the toils and bur- dens of domestic life." After dwelling upon "the blessing of being surrounded by good and faithful servants," he proceeded to suggest "the outlines of a plan which might gratify the wishes of those who are in favor of slavery, and not materially, if at all, affect the future prosperity of our infant state." This plan contemplated the toleration of a modified form of slavery. All slaves introduced were to be registered by their owners, taught
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to read, and given "correct ideas of the general principles of the christian religion." Then they were to become free, males at the age of forty and females at thirty-five. Children of slaves and indentured servants were also to be registered and should be freed, males at thirty-two and females at twenty-eight. "The constitution also to declare, that from and after the first day of January, one thousand eight hundred and sixty, slavery of every kind or character should then and from thenceforth cease : -the proprietors being liable upon their bonds, that no slave at that time, infirm or over fifty years of age, should become in any manner chargeable to the public."
The members of the Illinois convention had before them the slavery provisions of two constitutions framed for states which, like Illinois had been under the obligation of making their con- stitutions harmonize with the Ordinance of 1787. Section two of article eight-the bill of rights-of the Ohio constitution of 1802 reads: "There shall be neither slavery nor involuntary ser- vitude in this State, otherwise than for the punishment of crimes, whereof the party shall have been duly convicted; nor shall any male person, arrived at the age of twenty-one years, nor female person, arrived at the age of eighteen years, be held to serve any person as a servant, under the pretense of indenture or other- wise unless such person shall enter into such indenture while in a state of perfect freedom and on condition of a bona-fide con- sideration, received, or to be received, for their service, except as before excepted. Nor shall any indenture of any negro or mu- latto, hereafter made and executed out of the State, or, if made in the State, where the term of service exceeds one year, be of the least validity, except those given in the case of apprentice- ships." The Indiana constitution of 1816 ignored the question of existing indentures and merely declared: "There shall be neither slavery nor involuntary servitude in this State, otherwise than for the punishment of crimes, whereof the party shall have been duly convicted, nor shall any indenture of any negro or mulatto, hereafter made and executed out of the bounds of this State be of any validity within the State." Both constitutions, moreover, declared that no alteration should ever be made so as
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to introduce slavery or involuntary servitude, the Indiana consti- tution stating as reason therefore that "the holding any part of the human creation in slavery or involuntary servitude can only originate in usurpation and tyranny."291
The members of the committee of fifteen which framed the draft of the Illinois constitution appear to have been unwilling to leave the question of existing indentures to the courts and so they selected the provision from the Ohio constitution, leaving blanks to be filled in for the age limits. Instead of inserting the section in the bill of rights, however, it was presented as the single section of a separate article numbered six. This might be taken to indicate that the committee expected additional sec- tions to be added by the convention. At the first reading of this article the blanks were filled as they had been in the Ohio section and "further consideration was postponed until the second read- ing." The first real consideration of the question took place on August 18. The issue of the Intelligencer for the nineteenth, which doubtless went to press before any action had been taken, stated that "the question of slavery is not yet decided; a majority however, are said to be opposed to it." The same issue contains also a communication which indicates the kind of argument which was being brought to bear upon the members of the convention. After lamenting the burden of taxation which would be neces- sary in order to carry on the state government "even upon as economical a scale as can safely be established," the writer declared : "It is thought the exclusion of slavery will annihilate a lucrative source of public revenue. I mean the United States' salines, as white men cannot be procured in sufficient numbers to convert these salines to any extensively valuable purposes." Undoubtedly the problem of the salines was a considerable factor in determining the convention's attitude on the slavery question.
When article six came up for second reading, on August 18, the first clause was changed to read: "Neither slavery nor invol- untary servitude shall hereafter be introduced into this state;" for the words "under pretence of indenture or otherwise" were substituted "under any indenture hereafter made;" and a second
21Thorpe, Constitutions, 5:2909; 2:1070, 1068.
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section was added as follows: "Nor shall any person bound to labor in any other state, be hired to labor in this state, except within the tract reserved for the salt works near Shawneetown, nor even at that place for a longer period than one year at one time; nor shall it be allowed there, after the year-any violation of this article, shall effect the emancipation of such person from his obligation to service."292 The changes in the first section and the additional section appear to have been proposed together but they were voted on separately. The vote on the amendments to the first section would appear to be the most significant of any of the votes on the slavery question in the convention. Those in favor of the changes were Morse of Bond; Borough, Prickett, and Stephenson of Madison; Messinger of St. Clair; Cairns of Monroe; Fisher and Kane of Randolph, Hall and Will of Jackson; Omelveny of Pope; Harrison of Franklin; Jones, White, and Hubbard of Gallatin; and Cullom and Kitchell of Crawford-seventeen. Opposed to them were Kirkpatrick of Bond; Lemen of St. Clair; Bankson, the sole representative from Washington; Moore of Monroe ; M'Fatridge and West of Johnson; Ferguson of Pope; Echols and Whiteaker of Union; Roberts of Franklin; Hargrave and McHenry of White; and Gard and Compton of Edwards-fourteen. This vote would indicate that the issue was by no means a sectional one between the northern and southern parts of the settled area.
The object of the changes in section one of the slavery article was undoubtedly to prevent the section from being interpreted in such a way as to interfere either with the so-called "French slaves" or with the indentured servants who had been introduced during the territorial period. After the adoption of these changes, the proposed second section was accepted without a division. There were some members of the convention, how- ever, who were not satisfied with a merely negative position on the existing indentures, and on the following day, without wait- ing for the third reading of the article, Leonard White of Galla- tin offered an additional section declaring that "each and every
292 An act passed by the territorial legislature, December 22, 1814 had per- mitted the hiring of slaves anywhere in the territory for periods not to exceed one year. Pope's Digest, 2:472.
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person who has been bound to service by contract or indenture, in virtue of the laws of the Illinois territory, heretofore existing, and in conformity with the provisions of the same, without fraud or collusion, shall be held to a specific performance of their con- tracts 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 descendants of such persons, negroes and mulattoes, shall become free at the age of twenty-five years." This section was adopted by the same vote as that on the amendments to sec- tion one, 17 to 14, but the alignment was not the same. Four men, Ferguson of Pope, Hargrave and McHenry of White, and Roberts of Franklin, who had opposed the changes in section one voted for this additional section; and four others, Borough and Prickett of Madison, Cairns of Monroe, and Cullom of Craw- ford, who had supported the changes opposed this section. What the motives of these men were can only be conjectured, but one of them, Prickett, had apparently experienced a change of heart for he at once moved a reconsideration of the whole article. The motion was defeated, however, without a division.
When article six came up for third reading, the first section was adopted, apparently without protest. An attempt was made, however, to strike out the second section, permitting the hiring of slaves in the salines, but this was defeated by a vote of 10 to 21. Among the ten were three of the men who had voted for the changes in section one and against section three- Borough, Cairns, and Prickett. All four of the men who had voted against the changes in section one and for section three opposed striking out section two as did also three who had voted on the antislavery side on each of the other propositions- Bankson of Washington, Kirkpatrick of Bond, and Moore of Monroe. The conclusion of section three was amended to read : "Provided, however, that the children thereafter born of such persons, negroes and 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
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their owners within six months after the birth of said child." The section was then adopted without a division.
The article on slavery as a whole is not easy to interpret. It would seem to have been the purpose of the convention to make Illinois ultimately a free state and to wipe out the territorial indenture system for the future, but to interfere in no way with existing property rights in slaves or indentured servants.29 The only vestige of the indenture system left was the right to bind negroes "while in a state of perfect freedom, and on condition of a bona fide consideration" to serve for not to exceed one year, and such indentures were to be valid only if made within the state. The action of the convention has usually been represented as an antislavery victory but the members who are known to have favored slavery were on the winning side in all three of the record votes. It has also been called a compromise between the oppo- nents and the advocates of slavery but it would probably be more accurate to consider it a victory for those who occupied middle ground on the subject. The solution may well have embodied the views of a majority of the convention and also of a majority of the people of the state as well. On the other hand the possibil- ity of the refusal of congress to admit the state if the constitu- tion should lean too strongly toward the proslavery side was doubtless kept in mind. In this connection it should be noted that the section on amendment contained no prohibition of a change in the constitution to allow the introduction of slavery, as had been the case in the constitutions of Ohio and Indiana. This may be significant of the hopes and expectations of some of the members of the convention.
The method of amending the constitution was set forth in article seven and was copied from the Ohio constitution. It provided, in the draft, that two-thirds of the general assembly might recommend to the electors "to vote for or against a con- vention." If "a majority of all the citizens of the state voting for representatives" voted in the affirmative the next legislature was to call such a convention consisting of the same number of
293The constitution did reduce the age to which children of indentured servants could be held, from 30 and 28 to 21 and 18 for males and females respectively. See Pope's Digest, 2:472.
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members as there were in the general assembly, which should meet within three months after the election, "for the purpose of revising, amending or changing the constitution." At first read- ing, a provision was inserted requiring two-thirds of all the mem- bers elected to the general assembly to join in ordering the election. The last article of the constitution, number eight, was the usual bill of rights. Here again the Ohio consti- tution was followed in the main, with occasional preferences shown for sections in the constitutions of Kentucky, Tennessee, or Indiana. A section which appears to have been original is number twenty; it provided "that the mode of levying a tax shall be by valuation, so that every person shall pay a tax in proportion to the value of the property, he or she has in his or her possession." Possibly this section was inserted in response to the complaints of "A friend to equal justice" about the "oppressive system of taxation" in existence in the territory. Section twenty-one also dealt with a matter of vital interest at the time not only in Illinois but throughout the country and espe- cially in the west-the subject of banking. There had been much discussion of this subject in the paper during the latter years of the territorial period, a number of banks had been char- tered by the legislature, and one had actually been established.294 The section in the draft, provided "that there shall be no other banks nor monied institutions in this state, but those already pro- vided for by law, except a state bank and its branches, which shall be established and regulated by the legislature of said state, as they may think best." The convention at first reading changed the second "shall" to "may." It is possible that one ob- ject of this section was to prevent the establishment in Illinois of a branch of the United States bank. Section twenty-two of the draft of the bill of rights declared that "to guard against the transgressions of the high powers which we have delegated, we
294"Journal," p. 28, 40, 49, 60. The words added to the article on amend- ments do not appear in the enrolled copy of the constitution in the office of the secretary of state. They must have been stricken out shortly before the convention adjourned, and the action upon it was doubtless recorded on one of the last pages of the "Journal," which unfortunately are lacking in the only available copy. See also Dowrie, Development of Banking in Illinois, 1817-1863, ch. 2; "Journal," p. 31, 40; Intelligencer, October 28, 1818.
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declare that all powers not hereby delegated, or well understood, remain with the people." After having run the gauntlet of three readings, this section, for some unknown reason, was stricken out on the recommendation of Kane's committee on revision. At the close of third reading, two sections, number twenty-two and twenty-three of the final constitution, were added to article eight. These were taken from the Indiana constitu- tion and provided for freedom of the press and of opinions and for the right to offer the truth of the charges as evidence "in prosecutions for the publication of papers investigating the offi- cial conduct of officers, or of men acting in a public capacity, or where the matter published is proper for public information."
The deliberations of the convention on the schedule and on various resolutions which were ultimately incorporated in it occupied a large amount of time and are of considerable interest, but unfortunately they are difficult to follow because the reports of the committee of five were not printed in full as was the draft of the constitution proper. The principal purpose of the schedule was to provide for the transition from territorial to state government. Thus it directed that the governor and all other territorial officers should continue to exercise their func- tions until superseded, and that all suits should be continued "as if no change had taken place." One of the sections which was evidently the subject of dispute in the convention was number twelve dealing with the qualifications of voters at the first elec- tion. Section twenty-seven of article two, as has been noted, restricted the franchise to those who had "resided in the State six months next preceding the election." The schedule reported by the committee apparently proposed no modification of this for the first election, but on August 21, Borough of Madison offered a resolution to extend the right to vote on that occasion to all those "who are actually residing in the state at the time." This resolution received its second reading the following day and was then rejected by vote of 3 to 28. It is significant that the affirm- ative votes were cast by the three delegates from Madison, the county which was growing most rapidly and was thus most inter- ested in the proposed concession. Three days later Borough
JESSE B. THOMAS (From original owned by Illinois State Historical Library]
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made another attempt with a resolution extending the franchise at the first election to those "who shall be actual residents of this state at the signing of this constitution," a three weeks resi- dence. The Madison county delegation must have won over many of the members to their views in the interval for this reso- lution was carried by vote of 18 to 12. The affirmative votes were cast, in the main, by the representatives from those counties in which the population was increasing most rapidly.
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