II HUM II II II III I II 
 
 $B SO MD1 
 
LIBRARY 
 
 OF THE 
 
 UNIVERSITY OF CALIFORNIA. 
 
 RECEIVED BY EXCHANGE 
 Class 
 
 
The Introductory Articles of the 
 Constitution of Illinois 
 
 BY 
 
 HERMAN G. JAMES, A.M., J.D., 
 
 MEMBER OF THE ILLINOIS BAR 
 
 THE WICKERSHAM PRESS 
 
 LANCASTER, PA. 
 
 1911 
 
THE INTRODUCTORY ARTICLES OF THE 
 CONSTITUTION OF ILLINOIS 
 
 BY 
 
 HERMAN GERLACH JAMES, A.M., J.D. 
 
 MEMBER OF THE ILLINOIS BAR 
 
 SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS 
 
 FOR THE DEGREE OF DOCTOR OF PHILOSOPHY 
 
 IN THE 
 
 FACULTY OF POLITICAL SCIENCE 
 COLUMBIA UNIVERSITY 
 
 Divisions one and two were read before the Chicago Historical Society in 
 1910 and appeared in a pamphlet form. 
 
 Division four appeared in the Illinois Law Review, Vol. IV, No. 9, p. 624. 
 
 THE WICKERSHAM PRESS 
 
 LANCASTER, PA. 
 
 I9II 
 

 
PREAMBLE. 1 
 
 A study of the preamble of a constitution may often 
 prove interesting and instructive to the student of constitu- 
 tional history, even though its practical value to a lawyer 
 may be comparatively slight. It has, indeed, been asserted 
 that a preamble is, strictly speaking, without force in a legis- 
 lative sense, being but a guide to and not the vehicle of the 
 import of a statute. 2 Other writers, however, have awarded 
 to the preamble of a constitution or a statute a larger meas- 
 ure of importance, 3 and the decisions of our federal supreme 
 court contain a number of expressions of opinion on the 
 meaning of the preamble to the federal constitution 4 which 
 have unquestionably been of great significance in the de- 
 velopment of the powers conceded by that tribunal to the 
 federal government under the constitution. Nor can it make 
 any material difference, for our purposes, whether the first 
 paragraph of the constitution of Illinois should be termed 
 an enacting clause rather than a preamble, as has been as- 
 
 1 " We, the People of the State of Illinois grateful to Almighty God for the 
 civil, political and religious liberty which he hath so long permitted us to enjoy 
 and looking to Him for a blessing upon our endeavours to secure and transmit 
 the same unimpaired to succeeding generations in order to form a more perfect 
 government, establish justice, insure domestic tranquility, provide for the com- 
 mon defense, promote the general welfare, and secure the blessings of liberty to 
 ourselves and our posterity, do ordain and establish this Constitution for the State 
 of Illinois." Constitution of Illinois, 1870, Preamble. 
 
 3 Lieber, " Hermeneutics," p. 117 n. 
 
 3 Story on the Constitution (4th ed.), p. 338; Kent's "Commentaries," Lec- 
 ture xx, p. 460 ff. 
 
 *Chisholm v. Georgia, 2 Dallas, 419; Martin v. Hunter, I Wheaton, 305; 
 McCullock v. Maryland, 12 Wheaton, 316. 
 
 3 
 
 226937 
 
4 THE CONSTITUTION OF ILLINOIS 
 
 serted of the almost identical preamble to the federal consti- 
 tution, l or whether it partakes of the nature of both of these 
 forms, for we are here concerned primarily with the origin 
 and development of the first paragraph in the constitution, 
 expressly termed by the framers, whether rightly or wrongly, 
 a preamble. 
 
 A considerable part of the preamble to the present consti- 
 tution of Illinois is directly traceable to the first constitution 
 of the state, adopted in 1818, the opening paragraph of 
 which contains the following language : " The People of 
 Illinois Territory etc. ... in order to establish justice, pro- 
 mote the welfare and secure the blessings of liberty to 
 themselves and their posterity do ... ordain and establish 
 the following constitution or form of government." 2 It is 
 seen that all of these clauses have become, with some minor 
 alterations, part of the preamble to the present constitution. 
 
 At the time when the first Illinois constitution was 
 framed it was already the general practice in the other states 
 of the Union to prefix preambles to their constitutions, for, 
 of the eighteen states which had adopted constitutions before 
 i8i8, 3 all but three, Georgia, 1798; New Hampshire, 1792; 
 and Vermont, 1793, had inserted a clause in the nature of 
 a preamble, as had also the federal constitution of 1787. Of 
 these sixteen, however, apparently only the Indiana consti- 
 tution of 1816, the Ohio constitution of 1802, and the fed- 
 eral constitution of 1787 could have served as models for 
 the Illinois constitution in this respect as they contain almost 
 
 1 Andrews, " Manual of the Constitution," p. 44. 
 
 8 Debates and Proceedings of the Constitutional Convention of 1869, p. 1889. 
 
 'Delaware, 1792; Georgia, 1798; Indiana, 1816; Kentucky, 1792; Louisiana, 
 1812; Maryland, 1776; Massachusetts, 1780; Mississippi, 1817; New Hamp- 
 shire, 1792; New Jersey, 1776; New York, 1777; North Carolina, 1776; Ohio, 
 1802; Pennsylvania, 1790; South Carolina, 1790; Tennessee, 1796; Vermont, 
 1793; Virginia, 1776. Thorpe, "American Charters, Constitutions and Organic 
 Laws." 
 
PREAMBLE 5 
 
 the identical phraseology, while the first three clauses are to 
 be found in none of the other preambles of that time. 
 
 In all probability the direct prototype of the Illinois pream- 
 ble of 1818 was that of the Indiana constitution of 1816; for 
 the wording is identical in the two, save that in the Illinois con- 
 stitution the third person is used instead of the first person, 
 which latter form was indeed adopted in the original commit- 
 tee draft of the constitution of Illinois, though subsequently 
 changed by amendment. 1 The constitution of Indiana having 
 been adopted less than two years before the constitutional 
 convention met in Illinois, and being furthermore the funda- 
 mental law of a neighboring state, closely related in every 
 way, it was naturally the instrument to which the framers of 
 the Illinois constitution directly looked for suggestions and 
 guidance, even as Indiana had in turn borrowed largely from 
 her elder sister state, Ohio, all three states having in close 
 succession been carved out of the original Northwest Terri- 
 tory. As regards the wording of the preamble there is no 
 doubt that the federal constitution was the ultimate original 
 instrument of which the above three state constitution pre- 
 ambles were copies. 
 
 A determined but unsuccessful effort was made to have 
 embodied in the preamble to the constitution of 1818 a 
 recognition of the Deity and of Christ. Ford, in his " His- 
 tory of Illinois " says, " during the sitting of the convention 
 of 1818, the Rev. Mr. Wiley and his congregation of a sect 
 called Covenanters, in Randolph County, sent in their peti- 
 tion, asking that body to declare in the constitution about 
 to be made that Jesus Christ was the head of the govern- 
 ment and that the Holy Scriptures were the only rule of 
 faith and practice. It does not appear," he goes on to say, 
 " by the journals of the convention that this petition was 
 
 1 Journal of the Constitutional Convention of 1818, pp. 16, 42. 
 
6 THE CONSTITUTION OF ILLINOIS 
 
 treated with any attention, wherefore the Covenanters never 
 yet 1 fully recognized the state government. They have 
 looked upon it as ' an heathen and unbaptized government 
 which denies Christ' ; for which reason they have constantly 
 refused to work the roads under the laws, serve .on juries, 
 hold any office or do any other act showing that they recog- 
 nize the government. For a long time they refused to vote 
 at the elections ; and never did vote until the election in 
 1824 when the question was whether Illinois should be made 
 a slave state, when they voted for the first time and unani- 
 mously against slavery." The actual wording of these peti- 
 tions, of which there were three in all, as shown by the jour- 
 nal of the convention of 1818 was slightly different, though 
 substantially as stated by Ford. 2 Two of them were referred 
 to a select committee which was later discharged from the 
 further consideration thereof, and the other, presented four 
 days before adjournment of the convention in Angust was on 
 motion of Mr. Cullom laid on the table " until the fourth day 
 of March next." 3 This agitation though unsuccessful at 
 that time had its effect on the consideration of the same 
 general question thirty years later when the second consti- 
 tution of Illinois was being framed. 
 
 Coming now to the constitution of 1848 we find several 
 changes in the form of the preamble from that of the constitu- 
 tion of 1818, which changes were also embodied in the pream- 
 ble to our present constitution. A distinct paragraph was made 
 of the preamble, some of the clauses in the first constitution 
 were slightly altered to conform to the style adopted by the 
 majority of constitutions in force at that time, and four new 
 phrases were added. Three of these viz. (in order to) (a) 
 "form a more perfect government," (b) "insure domestic 
 
 1 1854- 
 
 2 Journal of the Constitutional Convention of 1818, pp. 13, 66. 
 
 3 Ibid., p. 66. 
 
PREAMBLE 7 
 
 tranquility," (c) " provide for the common defense," were 
 evidently taken verbatim from the federal constitution, for 
 they were to be found in no other state constitutions in 1847, 
 except the last clause which was found in the Alabama con- 
 stitution of 1 819.' 
 
 The fourth addition, and the most important of the 
 changes, was the present clause referring to the Deity. 
 It has been seen how the failure of the convention of 
 1818 to embody any mention of the Deity in the con- 
 stitution of that year was the cause of violent opposition 
 by the Convenanters. Yet the report of the committee on 
 law reform in the convention of 1847 contained a preamble 
 in which again no reference was made to the Deity, 2 although 
 by this time nine state constitutions had been adopted with 
 some such clause in the preamble. 3 The preamble was, 
 however, amended by the addition of the present clause con- 
 taining an expression of thanks and an invocation, 4 written 
 by Judge Lockwood, 5 and modeled almost exactly on the 
 corresponding clause in the constitution of New Jersey 
 adopted three years before. 
 
 That the preamble as finally adopted in the constitution 
 of 1848 met with approval, or at least with no strong oppo- 
 sition, is evidenced by the fact that it was incorporated with- 
 out the slightest change both into the proposed constitution 
 of 1862 and into the present constitution adopted in 1870. 
 The convention of 1862 adopted the former preamble with- 
 
 1 Cf. Alabama, 1819, "insure tranquility," and Maine, 1819, "provide for our 
 mutual defense." Cf. also the Constitution of the Republic of Texas, 1836. 
 
 2 Journal of the Convention of 1847, p. 395. 
 
 3 Connecticut 1818, Delaware 1831, Iowa 1846, Maine 1819, Massachusetts 
 1780, New Jersey 1844, New York 1846, Rhode Island 1842, Texas 1845; 
 Thorpe, " American Charters, Constitutions and Organic Laws." 
 
 * Journal of the Convention of 1847, P- 5 11 - 
 
 5 Orville Berry, "The Constitutions of Illinois." Illinois Blue Book, 1907, p. 
 522. 
 
8 THE CONSTITUTION OF ILLINOIS 
 
 out discussion, but in the convention of 1870 the preamble 
 was again the subject of various motions, resolutions and peti- 
 tions especially with respect to the recognition of the Deity, 
 before being finally adopted in its entirety from the existing 
 constitution. One resolution called for a recognition of Jesus 
 Christ in addition to recognizing Almighty God, 1 and was 
 supported by a petition to that effect from divers citizens of 
 Washington County. 2 Another resolution again proposed a 
 preamble omitting all reference to the Supreme Being, 3 while 
 the committee on the bill of rights reported a preamble con- 
 taining a recognition of both Jesus Christ and Almighty 
 God. 4 A Mr. Goodell, impressed with the dignity of the 
 body of which he was a member, offerred the following: 
 " Resolved that the Committee on the Bill of Rights be re- 
 quested to inquire into the expediency of prefixing the word 
 ' Almighty ' to ' God,' as proposed in the preamble re- 
 ported to this Convention by the committee, as said phrase 
 clearly implies and asserts that the sovereignty exists else- 
 where than in this Convention." 5 
 
 These various resolutions and reports evoked considerable 
 debate 6 all terminating, however, in a substitute motion to 
 adopt the preamble to the existing constitution (1848) in lieu 
 of all pending propositions, which was adopted by the con- 
 vention. 7 
 
 That this demand for an express recognition of the Supreme 
 
 1 Journal of the Constitutional Convention of 1869, p. 96. 
 
 2 Debates and Proceedings of the Constitutional Convention of 1869, p. 479. 
 
 3 Journal of the Constitutional Convention of 1869, p. 179. 
 
 4 Ibid., p. 207. 5 Ibid., p. 238. 
 
 6 Debates and Proceedings of the Constitutional Convention of 1869, pp. 231- 
 235, 276-278. Cf. also Illinois State Journal, January 28, 1870, for a communi- 
 cation on the subject of recognizing Christ in the constitution. 
 
 7 Journal of the Constitutional Convention of 1869, p. 242. Cf. Illinois State 
 Journal, January 25, 1870, for editorial comment on the proposed preambles. 
 
PREAMBLE g 
 
 Being in the fundamental law of the state was not an isolated 
 phenomenon in Illinois, but merely one manifestation of a 
 general growing conviction among the people of the United 
 States as a whole in favor of such a recognition, appears 
 firstly from the fact that whereas in 1818 of the eighteen 
 constitutions then in force, only two, viz. Delaware 1792 and 
 Massachusetts, 1780, contained a direct recognition of the 
 Supreme Being, other than the references in the requirements 
 of oaths of office and the provision protecting religious free- 
 dom found in all the constitutions, by 1848 when such a 
 clause was inserted into the constitution of Illinois for the 
 first time, nine of the twenty-eight state constitutions then 
 in force contained such a clause in the preamble, two of the 
 sixteen states without it in 1818 having embodied it in sub- 
 sequent constitutions, viz. New Jersey, 1844, an d New York, 
 1846. At the present time, moreover, forty-one of the forty- 
 six state constitutions contain a clause similar to that in the 
 Illinois constitution, and of the remaining five, viz. New 
 Hampshire, 1792, Oregon, 1857, Tennessee, 1870, Vermont, 
 1793, and West Virginia, 1872, those of New Hampshire and 
 Vermont are still the constitutions of the earliest period when, 
 as has been seen, only three states contained a clause of that 
 nature. 1 
 
 It is an interesting fact that in the last constitutional con- 
 vention for Michigan in 1908 no suggestion had been made 
 to insert a clause in recognition of the Deity there having 
 been no such clause in either of the two prior constitutions 
 of that state until a resolution was presented on the floor 
 of the convention from a Free-thinkers Society in Detroit 
 protesting against any attempt to insert such a clause. Very 
 soon thereafter such a clause was reported, and adopted 
 without discussion. The federal constitution, moreover, still 
 dating from that early period and having no reference to the 
 
 1 See ante, p. 4. 
 
I0 THE CONSTITUTION OF ILLINOIS 
 
 Deity, has been subjected to considerable criticism on that 
 account, which culminated in 1863 and 1864 during the dark 
 days of the Civil War in three religious conventions, one 
 held at Xenia, Ohio, February 3, 1863, one at Sparta, Illinois 
 three days later and the third in Allegheny City, Pennsyl- 
 vania, January 27, 1864 all advocating an amendment to 
 the constitution so as to include an acknowledgment of the 
 Deity in the preamble. 1 
 
 In conclusion it may be added that at the present time all 
 but three state constitutions, viz. New Hampshire, 1792; 
 Vermont, 1793 ; and West Virginia, 1872 contain clauses in 
 the nature of a preamble, though not expressly so designated 
 in them all. These preambles are as a rule similar to that 
 of the constitution of Illinois, though with a few exceptions 
 somewhat shorter. Nevertheless they display in this respect 
 marked differences, ranging from a full-page introduction in 
 the constitution of Tennessee, 1870, and an extended philo- 
 sophical disquisition an the nature of government, in that of 
 Massachusetts, 1780, on the one hand, to the concise two 
 and three line preambles in the constitutions of North Dakota, 
 1889, and Oregon, 1857, on trie other. Of the two general 
 subjects in the preamble of the Illinois constitution, viz. the 
 reference to the Deity and the declaration of the purposes of 
 the constitution, the former is dealt with also in all but two 
 of the other state constitutions containing preambles, viz. 
 Oregon, 1857, and Tennessee, 1870, while the latter is in- 
 cluded in more than one-half of the present preambles. 
 
 From the above considerations, therefore, it is seen that 
 whatever the legal import or practical significance of the 
 preamble to a constitution may be, it has for a century and a 
 quarter had a recognized place in the form of our American 
 constitutions from the earliest constitutions of 1776 to the 
 most recent ones of 1907 and 1908. 
 
 1 Cornelison, " Religion and Civil Government in the United States," p. 230 ff . 
 
ARTICLE I. 
 
 BOUNDARIES. 1 
 
 The first public act of any subsequent significance, deal- 
 ing with the title and jurisdiction to any part of the territory 
 now comprised within the state of Illinois, was the Virginia 
 Charter of 1609. By this Charter James I granted to the 
 London Company, incorporated in 1609, two hundred miles 
 to the north and two hundred miles to the south of Old 
 Point Comfort, along the coast, and " all that space and cir- 
 cuit of land lying from the sea-coast of the precinct afore- 
 said, up into the land throughout, from sea to sea, west and 
 northwest." 2 Upon this charter, annulled in 1624 by quo 
 warranto proceedings, Virginia later partly based her claim 
 to the lands lying northwest of the Ohio, including the present 
 state of Illinois. This charter was followed in 1620 by the 
 Charter of New England, by which James I granted to the 
 reorganized Plymouth Company of 1606 all the land lying 
 
 1 " The boundaries and jurisdiction of the state shall be as follows, to wit : Be- 
 ginning at the mouth of the Wabash River; thence up the same, and with the 
 line of Indiana to the northwest corner of said state; thence east with the line of 
 the same state, to the middle of Lake Michigan; thence north along the middle 
 of said lake to north latitude forty-two degrees and thirty minutes, thence west to 
 the middle of the Mississippi River, and thence down along the middle of that 
 river to its confluence with the Ohio River, and thence up the latter river along 
 its northwestern shore to the place of its beginning; Provided, That this state 
 shall exercise such jurisdiction upon the Ohio River as she is now entitled to or 
 such as may hereafter be agreed upon by this state and the state of Kentucky." 
 Constitution of Illinois, 1870, Boundaries. 
 
 2 Second Charter of Virginia, 1609; Thorpe, " American Charters, Constitutions 
 and Organic Laws," vol. vii, p. 3790. 
 
 II 
 
12 THE CONSTITUTION OF ILLINOIS 
 
 and being in breadth from 40 north latitude to 48 and 
 " in length by all the breadth aforesaid throughout the main 
 land from sea to sea," T which grant therefore, covered all 
 that part of the present state of Illinois, situated north of an 
 east and west line about fifteen miles north of Springfield ; 
 that is to say, it included the entire northern half of the 
 present state. 
 
 The Council of New England then granted in 1628 to 
 a company composed of Endicott and five named asso- 
 ciates all that part of New England between three miles 
 north of the Merrimac River and three miles south of the 
 southermost point of Massachusetts Bay or of the Charles 
 River, " in length and longitude of and within all the breadth 
 aforesaid, throughout the main lands there, from the Atlantic 
 and Western Sea, and Ocean on the east part to the South 
 Sea on the west part." 2 This grant, therefore, did not ex- 
 tend as far south as the lands of the New England Council 
 extended and covered only about the northern one-tenth of 
 the present state i. e., north of lat. n. 42 2' which is prac- 
 tically the line of the present northern city limits of Chicago. 
 This grant was confirmed by Charles I in the following year 3 
 and became the basis of the Massachusetts claims to western 
 lands insisted upon in 1779, this charter having been annulled 
 by quo warranto proceedings in 1684 and a new charter 
 granted in 1691 4 conveying land to the westward as far as 
 the colonies of Connecticut extended in that direction. 
 
 This last colony held under a sea-to-sea charter by Charles 
 II. in 1662 granting to John Winthrop and associates all lands 
 west of Narragansett Bay, and south of the Massachusetts 
 
 1 The Charter of New England. Thorpe, vol. iii, p. 1827. 
 
 5 Cf. Charter of Massachusetts Bay, 1629; Thorpe, "American Charters, etc.," 
 vol. iii, p. 1847. 
 
 3 Charter of Massachusetts Bay, 1629; Ibid., p. 1846. 
 
 4 Charter of Massachusetts Bay, 1691; Ibid., p. 1870. 
 
BOUNDARIES ^ 
 
 line and between it and the sea and " in longitude as the line 
 of the Massachusetts colony running from east to west, that 
 is to say from the said Narragansett Bay on the east to the 
 South Sea on the west part." x It was this charter, never 
 annulled by judicial proceedings and not even physically 
 surrendered upon demand of Sir Edward Andros in 1687 
 which supported the claim of Connecticut to that part of 
 what is now Illinois situated between lat. n. 41, which runs 
 a few miles south of Kankakee, and the southern boundary 
 of the Massachusetts claim at 42 2'. 
 
 Such then, were the public acts up to the year 1663, pur- 
 porting to affect the title to lands now part of the state of 
 Illinois. It was not, however, until ten years later that the 
 first white man is known to have set foot within the present 
 territory of Illinois, and the ones thus to claim this country 
 by right of discovery were not Englishmen, but two French- 
 men, the one, Father Marquette the Jesuit missionary, the 
 other, Louis Joliet representing the French government at 
 Quebec. These two men in 1673 descended the Wisconsin 
 River to the Mississippi which they followed down to the 
 mouth of the Arkansas and ascending on their way back the 
 Illinois River to its upper waters, crossed over to Lake 
 Michigan at Chicago. From that time on, the Illinois coun- 
 try was entered by a number of French traders and ex- 
 plorers, chief among whom was the famous La Salle. About 
 the year 1700 the French villages of Kaskaskia and Cahokia 
 on the Mississippi River were settled and French coloniza- 
 tion slowly continued until the treaty of I763. 2 For almost a 
 century, therefore, after Marquette's voyage the French had by 
 occupation substantiated their claim to title and jurisdiction 
 by the right of discovery. 
 
 Then at the close of the French and Indian War, the king 
 
 1 Charter of Connecticut, 1662. Thorpe, vol. i, p. 529. 
 * Greene, " The Government of Illinois," pp. 7 et seq. 
 
14 THE CONSTITUTION OF ILLINOIS 
 
 of France was by the Treaty of Paris of 1763 obliged to 
 surrender to Great Britain everything that he possessed on 
 the left side of the Mississippi River, except the town of 
 New Orleans ; and the confines of the dominions of Great 
 Britain were fixed by a line drawn along the middle of the 
 Mississippi River from its source to the River Iberville. 1 
 By this treaty, therefore, the first international act involving 
 the title to land within the present state of Illinois, there 
 was fixed a boundary line a part of which has remained the 
 western boundary to the territory now included within Illi- 
 nois from that time down to the present. 
 
 Following this treaty, and in the same year there was issued 
 a proclamation by George III providing that no colonists 
 should settle west of the watershed for the Atlantic Ocean ; 2 
 all the valley from the Great Lakes to West Florida and 
 from the Alleghenies to the Mississippi being thereby set 
 apart for the Indians. In 1778 title and jurisdiction to the 
 region now partly included in the state of Illinois was again 
 claimed by Virginia as a result of the conquests by George 
 Rogers Clark, who in July of that year under a commission 
 from Governor Patrick Henry of Virginia captured the set- 
 tlements of Kaskaskia, Cahokia, and several other posts in 
 the name of that commonwealth. 3 Then by the act of Dec. 
 9, 1778 Virginia organized the county of Illinois, 4 compris- 
 ing all the country north and west of the Ohio River claimed 
 under the charter of Virginia of 1609.5 
 
 1 Treaty of Paris, 1763. Gentleman's Magazine, xxxiii, p. 121. The Iberville, 
 now called Manshac Bayou, is an outlet of the Mississippi some fifteen miles be- 
 low Baton Rouge, connecting the Mississippi on the west with the Amite River 
 on the east. See Thwaite's " Early Western Travels," vol. viii, p. 338; also Index. 
 
 2 Annual Register, 1763, pp. 208-213. 
 
 3 Hildreth, " History of the United States," vol. iii, p. 260. 
 
 4 Illinois Historical Collections, Virginia Series, vol. i, p. 9. 
 
 5 See supra, p. n. 
 
BOUNDARIES jcj 
 
 The last years of the Revolution saw the territory com- 
 prised within the present state of Illinois, claimed in whole 
 or in part by as many as five different governments. Eng- 
 land had of course not yet surrendered the title and jurisdic- 
 tion acquired by her from France through the treaty of 
 Paris. Virginia, as has been seen, claimed the whole of the 
 country northwest of the Ohio upon the double basis of her 
 first charter, and by subsequent conquest, while Massachu- 
 setts and Connecticut asserted claims based on their early 
 charters. New York insisted on her right to the Ohio valley 
 under a treaty with the Iroquois Indians who had asserted 
 jurisdiction over it, while the non-claimant states contended 
 that the lands should belong to the United States as a whole 
 and be at the disposal of Congress for carrying on the war. 
 Maryland especially denied the claims of the four states to 
 lands in the west and absolutely refused to ratify the Articles 
 of Confederation except on condition that the claimant states 
 cede their claims to Congress. 1 Inasmuch as the refusal of 
 Maryland to ratify the Articles of Confederation on any 
 other basis threatened to defeat the accomplishment of the 
 plan, Congress on Sept. 6, 1780 requested a liberal cession 
 to the United States of a portion of the claims of the several 
 states to waste lands in the western country, refusing at the 
 same time to go into the question of the validity of the vari- 
 ous claims asserted. 2 
 
 The first state to act on this request was New York when 
 in 1780 she authorized her delegates in Congress to cede to 
 the United States her claims to the western lands. This 
 was done by deed in March, 1781,3 accepted by Congress 
 in October, I782, 4 granting all the claim to lands west of 
 a meridian line drawn through the most westerly point of 
 Lake Ontario. Though the claims of New York probably 
 
 1 Journals of Congress, vol. v, p. 160. * Ibid., vol. vi, p. 123. 
 
 3 Ibid., vol. vii, p. 36. 4 fbid,, p. 373. 
 
1 6 THE CONSTITUTION OF ILLINOIS 
 
 did not actually extend to any part of what is now Illinois, 
 her ready cession paved the way for similar action by the 
 other states which did lay claim to some or all of the present 
 state. This movement was, furthermore, hastened by the 
 promise of Congress to erect the lands ceded into distinct re- 
 publican states, and in January, 1781 Virginia surrendered 
 her claim to the country northwest of the Ohio river. 1 In 
 1783 she authorized the giving of a deed, on certain condi- 
 tions, 2 which was done in March, 1784. Meanwhile, by 
 the Treaty of Peace in 1783, England had been obliged to 
 surrender her title to the western lands, thus giving the free 
 and undisputed ownership to all of the present state of 
 Illinois south of the Connecticut claim to the United States. 
 In April, 1785 Massachusetts through her delegates in Con- 
 gress ceded her claims to western lands to the United States, 3 
 followed in September, 1786 by a similar cession on the part 
 of Connecticut, 4 removing thereby the last of the adverse 
 claims to the country northwest of the Ohio. 
 
 The year 1787 witnessed the passage of the famous North- 
 west Ordinance, the first law of the new government to deal 
 with the political division of the newly acquired territory. 
 Article V of the Ordinance provided for the formation in the 
 territory, northwest of the Ohio, of not less than three nor 
 more than five states. The boundaries to the western-most 
 state, if three were to be formed, should subject to approval 
 by Virginia whose deed of cession had been conditioned on 
 a different division 5 be as follows, the rivers Mississippi, 
 Ohio and Wabash, a direct line drawn from the Wabash and 
 Post Vincennes due north to 'the territorial line between 
 
 1 Cf. Virginia Act of Cession. Thorpe," American Charters, Constitutions and 
 Organic Laws," vol. ii, p. 954. 
 
 2 Virginia Act of Cession. Thorpe, vol. ii, p. 954. 
 
 3 Journals of Congress, vol. x, p. 91 ff. * Jbid., vol. xi, p. 160. 
 5 Virginia Deed of Cession, 1684. Thorpe, vol. ii, p. 957. 
 
BOUNDARIES 
 
 MAP SHOWING CLAIMS OF EASTERN STATES TO TERRITORY IN ILLINOIS, CEDED 
 BY THEM TO THE UNITED STATES 
 
 WISCONSIN 
 
 La.r.JJ. 
 
1 8 THE CONSTITUTION OF ILLINOIS 
 
 United States and Canada, and by the said line to the Lake 
 of the Woods and the Mississippi, 1 which last line, however, 
 was an impossible one. This Act, therefore, designated the 
 present western, southern, southeastern and also save for a 
 slight change introduced by enabling act of 1818, the east- 
 ern boundaries of Illinois, for Virginia subsequently agreed 
 to this division into states of the ceded territory. 2 The 
 Ordinance further provided that " the boundaries of these 
 three states shall be subject so far to be altered that if Con- 
 gress shall hereafter find it expedient, they shall have author- 
 ity to form one or two states in that part of said territory 
 which lies north of an east and west line drawn through the 
 southerly bend or extreme of Lake Michigan." 
 
 The Ordinance furthermore stipulated that its " articles 
 shall be considered as articles of compact between the 
 original states and the people and states in said territory 
 and forever remain unalterable unless by common consent." 
 This enactment passed by the Congress of the Confedera- 
 tion was reaffirmed by the First Congress of the United States 
 in 1789 and changed only so far as requisite to adapt it to 
 the constitution of the United States. 3 
 
 At the commencement, therefore, of our national life under 
 the constitution we find the present state of Illinois included 
 within the Northwest Territory where it remained until the 
 year 1800. In May of that year the President signed the 
 act to divide the Northwest Territory into two separate gov- 
 ernments by making Indiana Territory out of all that part 
 of the territory northwest of the Ohio River, " which lies to 
 the westward of a line beginning at the Ohio opposite to the 
 mouth of the Kentucky, and running thence to Fort Recov- 
 ery, and thence north until it shall intersect the territorial 
 
 1 The Northwest Territorial Government. Thorpe, vol. ii, p. 957. 
 
 2 Virginia Act of Ratification, 1788. Thorpe, vol. ii, p. 963. 
 
 3 The Northwest Territorial Government, 1789. Thorpe, vol. ii, p. 963. 
 
BOUNDARIES l g 
 
 line between the United States and Canada," ' Vincennes on 
 the Wabash River being made the seat of government. 
 
 This act by which the present state of Illinois became part 
 of the Indiana Territory went into effect on July 4th, 1 800 from 
 which time no further change of government or organization 
 occurred until February, 1809, when the act was approved 
 for dividing the Indiana Territory into two separate govern- 
 ments, to take effect on March 1st of that year. By this act 
 the Territory of Illinois was created out of that part of Indi- 
 ana Territory lying " west of the Wabash River and a direct 
 line drawn from the said Wabash River and Post Vincennes 
 due north to the territorial line between the United States 
 and Canada," 2 with the seat of government at Kaskaskia, on 
 the Mississippi River. The boundaries thus established for the 
 new Territory of Illinois were the same as those provided in 
 the Ordinance of 1787 for the westernmost state to be formed 
 out of the Northwest Territory. Meanwhile by the purchase 
 of Louisiana in 1803 the western boundary to the Illinois 
 country, then part of Indiana Territory, ceased to be the di- 
 viding line between United States territory and foreign soil 
 and Illinois was finally surrounded on all sides by territory 
 belonging to the United States or some of them. 
 
 After changing from the first form of Territorial govern- 
 ment to the representative form in 1812 the Illinois country 
 was in 1817 ready for the most important step open to the 
 inhabitants thereof, to-wit the formation of a separate state 
 government. Ohio had been admitted as a state in 1802 
 with the boundaries designated by the Ordinance of 1787 
 for the eastern state to be formed out of the Northwest 
 Territory (in case more than three were to be formed) with 
 a proviso that if the northern boundary as prescribed by 
 
 1 2 United States Statutes at Large, 58. 
 
 2 Territorial Government of Illinois, 1809. Thorpe, "American Charters, Con- 
 stitutions and Organic Laws," vol. ii, p. 966. 
 
20 THE CONSTITUTION OF ILLINOIS 
 
 that Ordinance should pass to the south of the mouth of the 
 Miami River, it should, with the assent of Congress, be 
 changed to include the mouth of said river. 1 
 
 In 1816 Indiana was added to the states of the union with 
 its eastern, southern, and western boundaries as prescribed in 
 the same Ordinance but with its northern boundary ten miles 
 north of the east and west line drawn through the southerly 
 bend of Lake Michigan. 2 Congress added a proviso that the 
 boundaries as determined be ratified by the constitutional 
 convention of Indiana " otherwise they shall be and remain as 
 now prescribed by the Ordinance" of 1787, whereby it ap- 
 pears that Congress expressly recognized that in so chang- 
 ing the northern boundary of Indiana it departed from the 
 requirements of the Ordinance of 1787 in that respect, a fact 
 worth noting in connection with the Illinois-Wisconsin 
 boundary controversy some thirty years later, which was 
 based on an alleged departure of the same kind in fixing the 
 present northern boundary of Illinois. The enabling act 
 for Indiana furthermore provided for concurrent jurisdiction 
 on the Wabash River with the state to be formed west there- 
 of so far as the said river should form a common boundary 
 to both, which provision was not, however, expressly men- 
 tioned in the constitution of Indiana adopted in the same 
 year. 
 
 In December, 1817, the territorial legislature of Illinois 
 prepared a memorial to Congress praying for leave to form 
 a state government in this territory, 3 which memorial was 
 sent to the territorial delegate in Congress, Nathaniel Pope. 
 On his motion a bill was introduced to authorize the forma- 
 tion of a new state as requested by the memorial, with the 
 
 1 Constitution of Ohio, 1802. Art. vii, 6. Thorpe, "American Charters, Con- 
 stitutions and Organic Laws," vol. v, p. 2901. 
 
 * Enabling Act for Indiana, 2. Thorpe, vol. ii, p. 1053. 
 
 * Journal of the Legislative Council, December 8, 1817. 
 
BOUNDARIES 21 
 
 northern boundary formed by an east and west line drawn 
 through the most southerly bend of Lake Michigan in ac- 
 cordance with the Ordinance of 1787.* On motion of Mr. 
 Pope himself, the enabling act was amended as to the 
 boundary provisions by fixing the northern boundary at 
 lat. 42 30', its present location, and including the quadri- 
 lateral in Lake Michigan bounded by the northern line of 
 Indiana, the middle of Lake Michigan, the parallel n. 42 30' 
 and the continuation of the western boundary of Indiana. 2 
 
 This amendment as to the northern extent of the state was 
 of the utmost importance both to the state of Illinois itself 
 and, as Mr. Pope at that time prophesied, to the safety of 
 the entire Union. Had the northern boundary been fixed 
 as prescribed by the Ordinance of 1787, the state would have 
 extended only to about lat. n. 41 37'. By this amendment, 
 therefore, offered by Mr. Pope on his own responsibility and 
 without instructions from his constituents, fourteen of the 
 present northern counties, 3 including a frontage on Lake 
 Michigan and the present city of Chicago, were added to the 
 state of Illinois. The enabling act was passed as amended 
 without opposition, 4 and was approved in April, 1818. 
 
 Mr. Pope's chief arguments for giving Illinois a harbor on 
 Lake Michigan were (a) the additional security to the Union 
 against a possible desire of the southwestern states to break 
 away from the rest by giving Illinois communication through 
 the lakes with Indiana, Ohio, Pennsylvania and New York; 
 (b) the encouragement of the construction of the Illinois- 
 River-to-Lake-Michigan Canal. How wisely Nathaniel Pope 
 foresaw the future in thus making Illinois the keystone state 
 
 1 Annals of Congress, 1818, vol. ii, p. 1677. 
 
 * See Boundary Map, infra, p. 23. 
 
 3 Jo Daviess, Stephenson, Winnebago, Boone, McHenry, Lake, Carroll, White- 
 side, Lee, Ogle, DeKalb, Kane, Du Page and Cook. 
 
 * Annals of Congress, 1818, vol. ii, p. 1677. isth Congress, 1st Session. 
 
22 THE CONSTITUTION OF ILLINOIS 
 
 of the West was demonstrated over forty years later when 
 the fate of the Union hung largely on the stand to be taken 
 by Illinois in the War of the Rebellion. What the addition 
 of so much productive territory, agriculturally and industri- 
 ally, meant to the state is of course obvious, and it is small 
 wonder, therefore, that Wisconsin, claiming that under the 
 Ordinance of 1787 the boundary line of Illinois was fixed 
 about 6 1 miles further south, should have made an effort to 
 recover the territory between the line through the southerly 
 bend of Lake Michigan and the latitude n. 42 30'. 
 
 And so indeed she did, and for the ten years prior to the 
 admission of Wisconsin as a state in 1848 the agitation of 
 this boundary question was revived again and again. On 
 the one hand the advocates of the Wisconsin claim, among 
 them curiously enough very many of the Illinois citizens 
 living in the disputed territory, contended that the Ordinance 
 of 1787 was, as it in terms declared itself to be, a compact 
 binding upon the United States and the several states, and 
 unalterable save with the consent of all parties concerned ; 
 that the northern boundary of the southern state to be 
 formed out of the territory of Illinois was fixed by the Ordi- 
 nance of 1787 at the line through the southernmost part of 
 Lake Michigan; and that the line of 42 30' having been 
 fixed without their -consent or that of the people living in 
 the disputed territory was in violation of the Ordinance of 
 1787 and void. On the other side was the contention that 
 the northern boundary as fixed by the enabling act of 1818 
 was consistent with and not in violation of the Ordinance of 
 1787, according to an interpretation of the words of Art. V, 
 which will be referred to later on. 
 
 The two sides to this controversy have been so fully and 
 clearly stated in several publications x that it is necessary to re- 
 
 1 Wisconsin Historical Society Collections, vol. xi, pp. 494-501. " Boundary 
 Dispute between Illinois and Wisconsin," Illinois Historical Society, May, 1904, 
 Radebaugh; "The Beginnings of Illinois," Meese. 
 
BOUNDARIES 2 
 
 MAP SHOWING NORTHERN BOUNDARY OF ILLINOIS AS PRESCRIBED BY THE 
 ORDINANCE OF 1787 AND ALTERED BY THE ENABLING ACT OF 1818 
 
24 THE CONSTITUTION OF ILLINOIS 
 
 fer here only very briefly to the more important aspects. In 
 1838 the territorial legislature of Wisconsin sent a memorial to 
 Congress protesting against the proposition to limit the Wis- 
 consin territory by latitude 42 30' on the south, and asking 
 that the territory be extended as far south as the Ordinance 
 of 1787 provided. This was presented in 1839 to the Senate, 
 and appears never to have been reported out of the judiciary 
 committee. 1 In 1839 again the Wisconsin territorial legisla- 
 ture adopted resolutions, this time calling for a vote on the 
 question of a constitutional convention, and advocating that 
 the people in the disputed district be invited to express their 
 opinion in the matter and send delegates to a convention if 
 called. This was followed by a series of public meetings in 
 the disputed territory, culminating in a convention at Rock- 
 ford in July, 1840, in which delegates from nine counties 
 declared in favor of the Wisconsin claim and their desire to 
 belong to the latter state. 2 
 
 But the people of Wisconsin itself were generally opposed 
 to this movement, and in spite of repeated appeals by Judge 
 Doty, who became governor of the Wisconsin territory in 
 1841, and who had from the first been a strong advocate of 
 the rights of Wisconsin, nothing further was done until 1842. 
 In June of that year Governor Doty, in a letter to the gov- 
 ernor of Illinois, spoke of the disputed district as " one over 
 which Illinois was exercising an accidental and temporary 
 jurisdiction." Finally, after several meetings and ballotings 
 in favor of the Wisconsin claim on the part of the cities in 
 the disputed territory in Illinois, and several ballotings 
 against the forming of a state government to include the 
 disputed territory, by the inhabitants of Wisconsin territory 
 itself, a last report was sent to Congress setting forth the 
 claims of Wisconsin to the disputed territory, but was never 
 
 1 Wisconsin Historical Society Collections, supra, n (i), p. 496. 
 a Ibid., pp. 496 and 497. 
 
BOUNDARIES 2 $ 
 
 acted upon by that body. In the Wisconsin constitutional 
 convention of 1846 an attempt was made to introduce a pro- 
 vision calling for the determination of this boundary ques- 
 tion by the Supreme Court of the United States, but this 
 failed of adoption by the convention. 1 
 
 For a while it had seemed as though serious consequences 
 might result from the feeling engendered by the dispute, 2 
 but the matter was forever settled as a living question when 
 in 1848 Wisconsin accepted as her southern boundary the 
 line 42 3<y. That this determination of the question did 
 not, however, convince everyone of its justice or even legality 
 appears from Thwaite's concluding remarks on the contro- 
 versy as late as 1888, to the effect that " Wisconsin became 
 a state in 1848, stripped by the youthful greed of her south- 
 ern neighbor and political manoeuvering in Congress of 8500 
 square miles of the richest and most populous territory in 
 the entire Northwest." 3 
 
 The supporters of the right of Illinois rested their claim 
 on the ground that the words of Article V of the Ordinance 
 of 1787, permitting Congress to form one or more states 
 " in that part of the said territory which lies north of an east 
 and west line drawn through the southerly bend or extreme 
 of Lake Michigan," did not mean that the line could not be 
 put farther north if Congress so pleased. Governor Ford 
 thought the Ordinance of 1787 was not violated by the pro- 
 visions as to the boundaries in the enabling act. " There 
 is nothing," he writes, " in the Ordinance requiring such 
 additional state to be formed of the territory north of that 
 line ; another state might be formed in that district of coun- 
 
 1 Wisconsin Historical Society Collections, vol. xi, pp. 498-501. 
 
 2 See language of Governor Doty, Wisconsin Historical Society Collections, xi, 
 p. 500, and that of D. A. J. Upham a member of the Wisconsin Legislative Coun- 
 cil. Ibid., p. 499. 
 
 8 Wisconsin Historical Society Collections, vol. xi, p. 501. 
 
26 THE CONSTITUTION OF ILLINOIS 
 
 try though not of it, it need not necessarily include the 
 whole. By extending the limits north of the disputed line 
 Congress still had power to make a new state in that district 
 north of it, not including the portion given to Illinois." x 
 
 Nathaniel Pope himself in offering the amendment chang- 
 ing the boundary seems to have believed it to be in accord 
 with the Ordinance of 1787, for in the same breath, almost, 
 with the proposal of the changed boundary he affirmed the 
 binding nature of the Ordinance. 2 Congress, however, 
 clearly realized that the proposed boundary was in violation 
 of the Ordinance of 1787, as evidenced by the provision re- 
 lating to the Indiana northern boundary, 3 as well as by the 
 express language of the enabling act for Illinois, Sec. 4: 
 " Provided that the same (*". e. the state government) when- 
 ever formed shall be republican and not repugnant to the 
 Ordinance of the thirteenth of July, 1787, excepting so much 
 of said articles as relate to the boundaries of the states therein 
 to be formed" * From this it appears, therefore, that Con- 
 gress did not consider the Ordinance of 1787 as binding 
 upon them and hence they were free to repeal it if they 
 chose or ignore any part of it by such enactment, as is 
 moreover shown also by the change in the number of in- 
 habitants required for the forming of a state, sixty thousand 
 in the Ordinance to forty thousand for Illinois in the enab- 
 ling act. 
 
 There remained, therefore, two important questions un- 
 solved at the time Wisconsin finally accepted the 42 30' 
 boundary line, which stood in the way of a clear claim on 
 her part to the disputed territory ; first, was Article V of 
 the Ordinance of 1787 at all binding on the Congress in sub- 
 
 1 Ford, " History of Illinois," p. 21. 
 
 2 Annals of Congress, 1818, vol. ii, p. 1677. 
 8 Annals of Congress, 1818, vol. ii, p. 19. 
 
 4 Enabling Act for Illinois, 1818. Thorpe, vol. ii, p. 967. 
 
BOUNDARIES 2 ; 
 
 sequent years and, second, if so, did this boundary provision 
 violate the requirements of said article. Inasmuch, as the 
 United States Supreme Court was never called upon to de- 
 cide these questions it must ever remain conjectural as to 
 what the legal determination of the question would have been 
 in that tribunal of last resort. 
 
 As regards jurisdiction on the Wabash River the enab- 
 ling act provided that Illinois should have concurrent juris- 
 diction with Indiana, as also on the Mississippi River with 
 any state or states to be formed west thereof, so far as said 
 rivers should form a common boundary. 
 
 In August, 1818, the first constitution of Illinois ratified 
 the boundaries assigned by Congress, omitting the provisions 
 as to concurrent jurisdiction mentioned above. At this time 
 six other states of the eighteen having constitutions had in- 
 serted a clause defining their boundaries, J though none was 
 to be found in the New England or in the eastern states 
 north of Virginia^ 
 
 In the constitution of 1848 the reference to the boundaries 
 was embodied in a separate paragraph and a few minor 
 changes made in the wording. 2 The most important change 
 from the provision in the first constitution was the addition 
 of the proviso at the end of the article, relative to jurisdic- 
 tion on the Ohio River, to the northwest shore of which 
 Illinois only extended, to the effect that " this state shall 
 exercise such jurisdiction upon the Ohio River as she is now 
 entitled to, or such as may hereafter be agreed upon by this 
 state and the state of Kentucky." 
 
 The article on Boundaries in the present constitution was 
 adopted without change from the constitution of 1848, as 
 
 1 Georgia 1798, art. i; Indiana 1816, art. xi, sec. 17; North Carolina 1776, 
 xxv; Ohio 1802, art. viii, sec. 6; Tennessee 1796, art. xi, sec. 32; Virginia 1776, 
 next to the last paragraph. 
 
 "Journal of the Convention of 1847, P- 57 2 - 
 
2 8 THE CONSTITUTION OF ILLINOIS 
 
 was also the case in framing the proposed constitution of 
 1862. 
 
 Though the language of the Boundary article seems clear 
 and unambiguous, questions have frequently arisen both in 
 the state and in the federal courts requiring a construction 
 of the language and a more definite determination of the 
 jurisdiction and territorial extent of Illinois. The western 
 boundary line described as running from the middle of the 
 Mississippi River at lat. n. 42 30' "thence down along the 
 middle of that river to its confluence with the Ohio River," 
 has in several cases been held to be the middle of the main 
 navigable channel as usually followed, and though the river 
 may change imperceptibly from natural causes, the river as 
 it runs continues to be the boundary. 1 But if the river 
 should suddenly change its course or desert the original 
 channel, the boundary remains the middle of the deserted 
 river bed. 2 Furthermore, it is the main permanent river 
 that constitutes the boundary, not that part which flows in 
 seasons of high water and is dry at other times. Although 
 the physical boundary of Illinois extends only to the middle 
 of the river as defined above, its jurisdiction for entertaining 
 suits is concurrent over the whole river with the states of 
 Iowa and Missouri, by virtue of the Enabling Act for Illinois 
 and those for the above two states. 3 So it was held that Illi- 
 nois courts could take jurisdiction of a case growing out of a 
 collision near the Missouri shore of the Mississippi River, 
 though beyond the physical boundary of the state, and apply 
 the laws of Illinois to the settlement of the case. 
 
 1 St. Louis v. Rutz, 138 U. S., 249; Iowa v. Illinois, 147 U, S., I. The enabling 
 act for Missouri, 1820, expressly designated the middle of the main channel of 
 the Mississippi River as the boundary for that state along that river, and the 
 enabling act for Illinois designating merely " the middle of the river " was held 
 to mean the same thing. 
 
 'Buttenuth v. St. Louis Bridge Co., 123 Illinois, 536. 
 
 3 Thorpe, " American Charters, Constitutions and Organic Laws." 
 
BOUNDARIES 2 9 
 
 The boundary on the Ohio River is expressly limited by 
 the enabling act of 1818 to be along the northwestern 
 shore, and hence Illinois can exercise no jurisdiction over 
 the Ohio River except by consent of Kentucky. The rights 
 and extent of Illinois along that boundary have not been ad- 
 judicated directly, but in one case x involving the boundary 
 between Indiana and Kentucky, the United States Supreme 
 Court, affirming earlier cases, says " it must be assumed as 
 indisputable that the boundary of Kentucky extends to low- 
 water mark on the northwestern banks of the Ohio River." 
 In another case 2 the same court had said " when a great 
 river is the boundary between two states and one state is 
 the original proprietor and grants territory on one side only" 
 as was the case when Virginia made her original grant of 
 land "it retains the river within its boundaries and the 
 territory granted extends to the low-water mark on its side 
 of the river." This being true of Indiana's rights on the Ohio 
 which were not expressly limited by the enabling act for 
 that state, it is a fortiori true for Illinois the extent of which 
 is expressly limited. But with consent of Congress, Illinois 
 might by agreement with Kentucky obtain jurisdiction over 
 the Ohio River and for that purpose the constitutions of 
 both 1848 and 1870 contain a provision regarding such 
 agreement with Kentucky. 3 To make such agreement bind- 
 ing the consent of Congress is necessary 4 though such con- 
 sent need not be expressed but may be implied. 5 
 
 1 Henderson Bridge Co. v. Henderson City, 173 U. S., 592. 
 
 * Hadley v. Indiana, 5 Wheaton, 379. 
 
 3 See art. i Constitution of Illinois. Though this proviso has now been in the 
 constitution of Illinois for over sixty years, and relates to a matter which would 
 seem to be of considerable importance to the state, no record can be found in 
 the State Department of either Illinois or Kentucky of any attempt to come to 
 any such agreement as this proviso contemplates. 
 
 * Virginia v. West Virginia, 1 1 Wallace, 39. 
 5 Virginia v. Tennessee, 148 U. S., 503. 
 
30 THE CONSTITUTION OF ILLINOIS 
 
 By the enabling acts for both Indiana and Illinois, these 
 states are given concurrent jurisdiction over the Wabash 
 River, and the decisions relating to jurisdiction of this state 
 on the Mississippi River are equally applicable to the Wabash 
 River boundary. The extent of the territory and jurisdic- 
 tion of Illinois into Lake Michigan were judicially deter- 
 mined to be as provided by the enabling act and the pres- 
 ent constitution of Illinois in the case of ///. Central R. R. v. 
 Illinois, 146 U. S., 387. 
 
 Finally, though the northern boundary which as we have 
 seen was the cause of an extended controversy for almost a 
 decade, seems not to have been the subject of judicial 
 opinion, it appears from a letter of Professor John E. Daviess, 
 of the United States Coast and Geodetic Survey, written to 
 the Secretary of the Wisconsin State Historical Society, that 
 the line as it is now marked out by boundary posts does not 
 represent the parallel 42 30' as the constitution of each 
 state prescribes, " but zigzags to and fro, and should go 
 farther south than it now is about three-fourths of a mile 
 in the western part of Wisconsin, and farther north in and 
 east of Beloit." * 
 
 1 Wisconsin Historical Society Collections, xi, p. 501 n. 
 
ARTICLE II 
 
 BILL OF RIGHTS 1 
 
 THE constitutional practice of embodying in the funda- 
 mental law of a state a declaration of the rights and liberties 
 of the individuals in that state, a practice so familiar to us 
 living under the constitution of the United States as to be 
 regarded almost as a matter of course, is distinctively Amer- 
 ican in origin, and had its genesis less than a century and a 
 half ago. The famous Virginia Bill of Rights drawn up by 
 George Mason and adopted on June 12, 1776, by a conven- 
 tion of members of the old Virginia House of Burgesses, 
 was the first embodiment of the principle that certain rights 
 of the individual are so sacred that their inviolability should 
 be secured in the highest expression of the sovereign will of 
 the people. 
 
 The example of Virginia in thus formally declaring certain 
 rights and liberties of the people to pertain to them and 
 their posterity as the basis and foundation of government, 
 was followed in every one of the eleven states which adopted 
 constitutions following the resolution of the Continental 
 Congress in May, 1776, advising such action by the colonies. 
 
 Never had the belief in the existence of inviolable personal 
 rights been so general as in the century preceding the 
 American Revolution, and nowhere had this doctrine re- 
 
 1 The interpretation of Magna Carta given here is designed to show the views 
 generally accepted among American constitution makers, and is not intended to 
 represent the conclusions of recent critical scholars, like Maitland and McKechnie. 
 
 31 
 
32 THE CONSTITUTION OF ILLINOIS 
 
 ceived wider recognition than among the American colonists 
 The principle of individual liberty, religious, political and 
 personal, was so fundamental in the political thought of thai 
 time and place that the idea of guaranteeing this freedom b> 
 declaring it in the basic law of the government met with im- 
 mediate and universal approval and acceptance, not only ir 
 the subsequent state constitutions, and in the federal consti- 
 tution in this country, but in the constitutions of othei 
 countries as well. 1 
 
 To say that the idea of constituting these fundamenta 
 rights a part of the basis of government originated in the 
 American colonies in 1776, is not to say that the belief ir 
 the existence of such rights originated then and there 
 Indeed the consciousness of the existence of such rights 
 and even the formal declaration of their nature and exteni 
 began centuries before, and extended through a period dur- 
 ing which the constitutional principles and political philos- 
 ophy from which these rights and liberties were evolved anc 
 developed, underwent many radical changes. 
 
 The doctrine of individual rights free from interference 01 
 even destruction by the state was unknown to the politica 
 philosophy of the Greeks, to whom the state was absolutely 
 sovereign. Nor does this principle find recognition amon 
 the Romans or even in the middle ages, which knew indi- 
 vidual rights only in the shape of contractual relations aris- 
 ing out of an interest in the soil. 2 But in England certair 
 customs and rules of the common law had from early 
 times afforded some measure of protection, for individuals as 
 regarded their personal liberty and security, and the viola- 
 tion and destruction of such liberty and security at the hands 
 of the king aroused that protest and resistance which finally 
 
 1 The French Declaration of the Rights of Man, 1793. The constitutions o 
 the South American countries have followed this practice as well. 
 ' l Scherger, "The Evolution of Modern Liberty." Introduction. 
 
BILL OF RIGHTS 33 
 
 culminated in the first formal recognition of the rights of 
 English subjects, the Great Charter of King John in 1215. 
 
 In this, the earliest charter of liberties, is found the model 
 for many of the provisions of the Virginia Bill of Rights, the 
 prototype of all the others. So, for instance, the prohibition 
 on excessive fines and on cruel and unusual punishments is 
 directly traceable to chapter 20 of the Great Charter, un- 
 reasonable seizure is forbidden in effect in chapter 38, and 
 the protection of trial according to the law of the land was 
 virtually embodied in chapter 39. r Still other provisions of 
 the Great Charter were adopted by some bills of rights 
 framed immediately after that of Virginia, and copied from 
 them into the later constitutions, among which provisions 
 may be mentioned the assurance of right and justice without 
 sale, denial, or deferment, 2 and the right of free egress from 
 and ingress to the country.3 
 
 These several guarantees embodied in the Great Charter 
 were repeatedly affirmed by later kings, only to be as re- 
 peatedly violated, until again solemnly declared by the peo- 
 ple, this time through their representatives in Parliament, in 
 the second great charter of liberties, the Petition of Right to 
 Charles I in 1628. In this document the principal ground 
 of complaint was the violation of the due process of law pro- 
 visions in the Great Charter and the statute 20 Edward III., 
 through the application of martial law in times of peace, and 
 the unjust quartering of soldiers and sailors upon the 
 subjects. 4 
 
 In 1679 the Habeas Corpus Act 5 reaffirmed another com- 
 mon law right which a century later was regarded as of 
 fundamental importance by the framers of many of our 
 
 1 Stubbs, " Select Charters Illustrative of English Constitutional History," p. 
 296. 
 
 1 Magna Charta, ch. 40. 3 Ibid, ch. 42. 
 
 * Stubbs, " Select Charters, etc.," p. 5 1 5. 5 IbiJ., p. 5 1 7. 
 
34 
 
 THE CONSTITUTION OF ILLINOIS 
 
 American bills of rights, though not found in the Virginia 
 constitution of 17/6. Then, finally, in 1689 the English 
 Bill of Rights, declared upon the accession of William and 
 Mary, in denunciation of the abuses of the late King James 
 II. as a warning and guide to the new rulers, still further in- 
 creased the number of individual rights thus established in 
 England by formal declaration. Among the additional se- 
 curities provided were the fundamental rights of petition, of 
 bearing arms, of free elections and of freedom of speech and 
 debates in the legislature. 1 
 
 In addition to the rights thus formally established by 
 the series of English constitutional documents, there were 
 certain other doctrines of the common law which every Eng- 
 lish subject regarded as his birth-right, and which seemed 
 of sufficient importance to the colonists to deserve embodi- 
 ment in their enumeration of inviolable rights. Some of 
 these rights had indeed always been kept sacred in England 
 by the crown, but others had been repeatedly ignored, and 
 all were the heritage of the colonists, and were deemed 
 worthy of the new protection which the written constitutions 
 were meant to guarantee. 
 
 Such then were some of the sources from which the 
 American statesmen in 17/6 derived their ideas of funda- 
 mental rights, ideas in no sense, therefore, newly discovered 
 or declared at that time. On the contrary they were, in the 
 language of the English Bill of Rights itself, " ancient rights " 
 to which every English subject had been entitled by the 
 course of the common law and the statutes. 
 
 But the American bills of rights contained still other 
 declarations, which had not previously been embodied in any 
 charter or petitions, and which were not recognized by the 
 common law, the origin of which is traceable to a different 
 
 1 Stubbs, " Select Charters Illustrative of English Constitutional History," p. 
 523. 
 
BILL OF RIGHTS 
 
 35 
 
 source, namely, the then recent emphasis and general accep- 
 tance of the theory of natural law as developed in the works 
 of Milton, Harrington and Locke in England, and in those 
 of eminent writers of continental Europe, during the seven- 
 teenth century. 
 
 The theory of natural law, originated almost five centuries 
 before Christ by Heraclitus and developed in Greece by the 
 Stoics and their successors, could come to no fruition in 
 the birth of private rights in that period when the sovereignty 
 of the state was absolute. 1 But the effect of this theory 
 upon the development of the doctrine of natural rights, two 
 thousand years later, when political concepts had radically 
 altered, was most potent. 
 
 In the philosophical theory of natural law as expounded 
 in the seventeenth century was embodied the concept of 
 inherent, natural, inalienable rights appertaining to men as 
 men, and which no government could rightly abridge or 
 destroy. More than a century before the American Revolu- 
 tion, Milton had defined the purpose of government to be the 
 preservation of the liberty, peace and safety of the people, 
 and had declared that all men are naturally born free, and that 
 liberty of the press and of conscience should be respected. 
 Developing this theory still further, Locke contended that 
 men lost none of their natural rights by entering into the 
 state of society, but surrendered only so much of their lib- 
 erty as was absolutely necessary to establish government. 2 
 
 These views, championed by many noted publicists of the 
 seventeenth and eighteenth centuries, were well known to 
 the leaders among the American colonists, in whose tem- 
 peraments they found a ready response, and whose diffi- 
 culties they seemed so satisfactorily to solve. The Massa- 
 chusetts Body of Liberties had as early as 1641 contained a 
 
 1 Scherger, " The Evolution of Modern Liberty," ch. I. 
 1 Ibid., ch. ii. 
 
36 THE CONSTITUTION OF ILLINOIS 
 
 statement and guarantee of many of these rights, 1 and a cen- 
 tury or more later James Otis, John Adams and Samuel 
 Adams, filled with enthusiasm for the doctrine of natural 
 law and natural rights, had made this captivating theory the 
 common knowledge of the American colonists. 2 
 
 Inflamed with the memory of recent tyrannies and op- 
 pressions, engrossed in the terrible struggle they had just 
 commenced in behalf of their liberties, and conscious that 
 even a democracy furnishes no necessary guarantee of lib- 
 erty, the colonists almost inevitably accorded to the declara- 
 tion of the nature and purpose of government, and of the 
 rights of liberty of conscience, speech, and press so important 
 a place in the structure of their constitutions. 
 
 When, therefore, in 1818 the framers of the first Illinois 
 constitution were confronted with the problem of drawing 
 up a statement of the fundamental law for the new common- 
 wealth, there was nothing novel, either in the doctrine of 
 inviolable personal rights and liberties or in the practice of 
 guaranteeing them in the constitution by express enumera- 
 tion. Not only had all of the eighteen state constitutions in 
 force when Illinois became a state contained such a decla- 
 ration of individual rights, as had also the Declaration of 
 Independence and the federal constitution, but in France 
 also had this principle received effective recognition in the 
 Rights of Man prefixed to the Constitution of I/93. 3 
 
 Of the most immediate and determining influence, no 
 doubt, in shaping the Illinois bill of rights was the famous 
 Northwest Ordinance of 1787, under which, with but slight 
 changes, the framers of the Illinois constitution were then 
 living, and which for thirty years past had been the organic 
 
 1 Stimson, " Federal and State Constitutions of the United States," Book II, 
 ch. i. 
 
 1 Scherger, supra, ch. ix. 
 
 3 Lieber, " Civil Liberty and Self-Government," p. 536. 
 
BILL OF RIGHTS 
 
 37 
 
 law of the territory now about to be formed into a state. 
 This Ordinance contained six articles of compact, of which 
 the first two constituted virtually a bill of rights, which 
 though shorter and more concise were practically as com- 
 prehensive as many of the more verbose declarations in the 
 existing state constitutions. 1 The authorship of this cele- 
 brated Ordinance seems to be a matter of dispute, but 
 whether it was chiefly the work of Putnam, Cutler, Dane or 
 Jefferson, or, what is more probable, a combination of the 
 ideas of them all, it unquestionably offered a more natural 
 and familiar model for the framers of the first Illinois consti- 
 tution than did even the Virginia bill of rights and its copies 
 in the other states, all of which undoubtedly exerted a con- 
 siderable influence as well. 
 
 Section /. 2 The first section of the bill of rights of the 
 constitution of Illinois begins by declaring men to be by 
 nature free and independent, and to possess those inherent 
 and inalienable rights which, as has been seen, occupied 
 so important a place in the political philosophy of the 
 seventeenth century. The constitution of 1818 had de- 
 clared that "all men are born free and independent and 
 have certain inherent and indefeasible rights, among which 
 are those of enjoying and defending life and liberty, and of 
 acquiring and possessing and protecting property and repu- 
 tation, and of pursuing their own happiness," using language 
 
 1 Thorpe, " American Charters, Constitutions and Organic Laws," vol. ii, p. 957. 
 
 2 "All men are by nature free and independent and have certain inherent and 
 inalienable rights; among these are life, liberty and the pursuit of happiness. To 
 secure these rights and the protection of property, governments are instituted 
 among men, deriving their just powers from the consent of the governed." Con- 
 stitution of Illinois, 1870, Art. ii, Sec. I. 
 

 
 38 THE CONSTITUTION OF ILLINOIS 
 
 very similar to that of the Virginia Bill of Rights of 1776,' 
 and of the Declaration of Independence in the same year. 2 
 
 The assertion that all men are born equally free and inde- 
 pendent was given further effect in Illinois by the prohi- 
 bition on slavery, 3 whereas in Virginia this declaration was 
 believed not to apply to the negroes. 4 Though property 
 and reputation were first included among the fundamental 
 individual rights, along with life, liberty, and the pursuit of 
 happiness by the Massachusetts Body of Liberties (Pre- 
 amble) 5 in 1641, this broader enumeration was to be found 
 in only one state constitution in 1818, namely, that of Penn- 
 sylvania, I7QO, 6 from which apparently the whole of this sec- 
 tion in the Illinois constitution of 1818 was taken. 
 
 The essentially American doctrine of the sovereignty of 
 the people, and the principle of the basis and purpose of 
 government were declared in the words, " all power is in- 
 herent in the people, and all free governments are founded 
 on their authority and instituted for their peace, safety and 
 happiness," which had been stated in precisely the same 
 terms in the constitutions of Indiana, 1816, and Pennsyl- 
 vania, 1790, and in very similar language in a number of the 
 other state constitutions. 
 
 In the constitution of 1848 all these provisions were 
 adopted from the first constitution without the slightest 
 change, though the original committee report included in 
 addition an express declaration of the right of the people to 
 alter the government whenever the public good requires it; 
 a provision found in the original Virginia Bill of Rights and 
 
 1 Constitution of Virginia, 1776. Bill of Rights, sec. I. Thorpe, " American 
 Charters, Constitutions and Organic Laws," vol. vii, p. 3812. 
 
 2 Declaration of Independence, Par. 2. Thorpe, supra, vol. i, p. 4. 
 
 3 Constitution of Illinois, 1818, Art. vi, Sec. I. Thorpe, vol. ii, p. 980. 
 4 Stimson, " Federal and State Constitutions of the United States," p. 21. 
 6 Stimson, supra, p. 20. 6 Art. ix, Sec. I. 
 
BILL OF RIGHTS 39 
 
 in the Declaration of Independence, and upon the apparently 
 self-evident principle of which rested the theoretical justifi- 
 cation of both the English and the American Revolutions. 1 
 
 In the constitution of 1870 the somewhat prolix statement 
 of the earlier constitutions was abandoned for the concise 
 wording of the Declaration of Independence, with the addi- 
 tion of the protection of property as one of the purposes of 
 government. A change in wording that aroused some oppo- 
 sition in the constitutional convention of 1869 was the un- 
 qualified declaration that all men are by nature independent, 
 in place of the modified form "equally independent" con- 
 tained in the former constitutions. Several suggestions were 
 made to alter this by adding qualifying phrases or by striking 
 it out altogether as being contradictory to the real place of 
 man before God and among his fellowmen, but this absolute 
 declaration of man's independence was retained, though not 
 found in the early constitutions nor even in the Declaration 
 of Independence, and contained in but three of the thirty-six 
 other constitutions in force in 1870. 
 
 In Illinois, as has been seen, the assertion of man's inde- 
 pendence was never qualified by considerations of race or 
 color, but extended in effect, as it did in terms, to all 
 men. Liberty and property as used in the constitution 
 have been repeatedly defined by the courts in cases involv- 
 ing alleged violations of the due process of law provisions, 
 and may therefore best be considered in the discussion of 
 the following section. 
 
 Section 2* Section 2 contains the prohibition against 
 
 1 In the proposed constitution of 1862, the convention adopted the exact lan- 
 guage of the Declaration of Independence, with reference to these personal rights, 
 adding, however, the light of acquiring, possessing and protecting property. 
 
 2 ' No person shall be deprived of life, liberty or property without due process 
 of law." Constitution of Illinois, 1870, Art. ii, Sec. 2. 
 
40 THE CONSTITUTION OF ILLINOIS 
 
 deprivation of life, liberty or property without due process 
 of law, which has proved to be the most effective guarantee 
 of individual rights as against the government, not only as 
 interpreted and enforced by the state courts but also as ap- 
 plied by the federal courts under the fourteenth amendment 
 of the United States constitution. The first constitution of 
 Illinois declared that no freeman should be imprisoned or 
 disseized of his freehold, liberties or privileges, or outlawed 
 or exiled or in any manner deprived of his life, liberty or 
 property but by the judgment of his peers or the law of 
 the land. This provision was virtually a copy of chapter 
 39 of the Great Charter of King John of 1215 as amended 
 and affirmed by chapter 35 of the Great Charter of Henry 
 III., two years later, 1 but with the addition of the phrase, 
 " or deprived of his life, liberty or property." 
 
 The second article of compact in the Northwest Ordinance 
 of 1787 had also declared that no man should be deprived 
 of liberty or property but by the judgment of his peers or 
 the law of the land, and similar provisions had been embodied 
 in more than two-thirds of the state constitutions in force in 
 1818, though not generally limited to freemen, a limitation 
 probably retained in the constitution of Illinois merely by 
 oversight, since slavery was prohibited by the Constitution. 2 
 
 No change was made in the wording of this section until 
 the adoption of the present constitution, when the essence of 
 the provision was embodied in the short statement of the 
 present section copied from amendments V and XIV of 
 the federal constitution, the latter of which had been 
 adopted but a year before the constitutional convention of 
 1869 met in Springfield. At that time about one third of 
 the state constitutions still retained the original form, " but 
 by the judgment of his peers " which meant trial by jury 
 
 1 Stubbs, " Select Charters," pp. 301, 346. 
 1 See supra, p. 38. 
 
BILL OF RIGHTS 4! 
 
 and " or the laws of the land " which meant indictment and 
 procedure at common law ' though a number employed its 
 now famous equivalent " by due process of law." This phrase 
 appeared first in the Statute 28 Edward III., chapter 3, and 
 was not found in any state constitutions prior to the adop- 
 tion of Amendment V in the constitution of the United 
 States. 
 
 This constitutional guarantee of life, liberty and property 
 against deprivation save by due process of law, has been 
 expounded and applied in an enormous mass of cases in 
 this state, as in all the others, which it would be impossible 
 to discuss in detail, though a few general definitions may be 
 helpful in showing the remarkable scope of this apparently 
 simple provision. 
 
 " Liberty," as used in the constitution, means not only 
 freedom from servitude and restraint, but also the right of 
 every man to be free in the use of his powers and faculties, 
 and to adopt and pursue such a vocation or calling as he may 
 choose, subject only to the restraint necessary to secure the 
 common welfare. 2 
 
 " Property " is not only the physical thing which may be 
 the subject of ownership, but also the right of dominion, 
 possession and power of disposition over it, and includes as 
 well the right to acquire it in any lawful mode or by follow- 
 ing any lawful pursuit which the citizen in the exercise of 
 the liberty guaranteed may adopt. 3 
 
 The privilege of contracting is, therefore, both a liberty 
 and a property right within the protection of the constitu- 
 tion, 4 a doctrine which has caused the invalidation of a large 
 number of laws passed for the protection of laborers. A 
 
 1 Stimson, " Federal and State Constitutions of fhe United States," p. 16. 
 
 2 Braceville Coal Company v. People, 147 Illinois, 66 (1893). 
 
 * Ibid. 
 
 4 Frorer v. People, 141 Illinois, 171 (1892). 
 
4 2 THE CONSTITUTION OF ILLINOIS 
 
 number of cases deal with the question of what are " vested 
 rights," as these only are property within the protection of 
 this clause. So, for example, there is no vested right in 
 existing rules of evidence ' nor to particular remedies * and 
 in general mere rights in expectancy, as the expectancy of 
 inheritance are not vested rights. 3 Rights of action are, 
 however, protected, 4 as are also accrued defences. 5 
 
 "Due process of law "has been variously defined and 
 variously interpreted, but no definition can be at the same 
 time comprehensive and accurate. It is synonymous with 
 " the law of the land," and Cooley cites with approval the 
 definition of this latter phrase given by Webster in the 
 Dartmouth College Case : " By the ' law of the land ' is 
 most clearly intended the general law, a law which hears 
 before it condemns; which proceeds upon inquiry and ren- 
 ders judgment only after trial. The meaning is, that every 
 citizen shall hold his life, liberty, property and immunities 
 under the protection of the general rules which govern 
 society." 6 Very similar is the definition given by the Illi- 
 nois Supreme Court. 7 
 
 Without examining in detail the different applications of 
 the requirement of due process it suffices here to mention 
 that it demands the equal protection of the laws, excluding 
 unreasonable class legislation, that is, legislative discrimina- 
 tion not based on reasonable differences, 8 laws tending to 
 grant monopoly rights, and the imposition of special burdens 
 
 1 Meadowcroft v. People, 163 Illinois, 56 (1896). 
 
 2 Smith v. Bryan, 34 Illinois, 564 (1864). 
 
 3 Cooley, " Constitutional Limitations" (ed. 7), p. 512. 
 * Van Imvagen v. Chicago, 61 Illinois, 31 (1871). 
 
 5 McDuffee v. Sinnott, 119 Illinois, 449 (1887). 
 
 6 Cooley, " Constitutional Limitations," p. 502. 
 
 7 Millet v. People, 171 Illinois, 299 (1898). 
 
 8 Ibid. 
 
BILL OF RIGHTS 
 
 43 
 
 and liability without just cause. 1 In the judicial proceed- 
 ings themselves, it makes, above all, the requirement of 
 competent jurisdiction in the tribunal undertaking to affect 
 the property rights of individuals. 2 
 
 The most important limitation on the individual's right 
 to the undisturbed enjoyment of his property, besides the 
 right to eminent domain, and the taxing power, is the so- 
 called police power of the state. But even this power can 
 be exercised only within the bounds necessary to protect 
 the public health, safety and comfort, and any interference 
 beyond that violates the guarantee of due process of law. 3 
 
 Section j. 4 Liberty of conscience and freedom of religious 
 worship were of course regarded by the American colonists 
 as one of the most essential of the inherent, inalienable rights 
 of man, and the religious persecutions in their mother country 
 had profoundly convinced them of the need of guaranteeing 
 this right against governmental interference. Accordingly 
 there is found in the first constitutional declaration of man's 
 rights, viz., the Virginia Bill of Rights of 1776, a guarantee 
 of religious freedom, notwithstanding that the Anglican 
 church was then the established church of that common- 
 wealth. Similar guarantees of the liberty of conscience and 
 
 1 Bessette v. People, 193 Illinois, 334 (1901). 
 
 * Bickerdike v. Allen, 157 Illinois, 95 (1895). 
 3 Ruhstrat v. People, 185 Illinois, 133 (1900). 
 
 * " The free exercise and enjoyment of religious profession and worship, with- 
 out discrimination shall forever be guaranteed : and no person shall be denied 
 any civil or political right, privilege or capacity on account of his religious opin- 
 ions; but the liberty of conscience hereby secured shall not be construed to dis- 
 pense with oaths or affirmations, excuse acts of licentiousness or justify practices 
 inconsistent with the peace or safety of the state. No person shall be required to 
 attend or support any ministry or place of worship against his consent, nor shall 
 any preference be given by law to any religious denomination or mode of wor- 
 ship." Constitution of Illinois, 1870, Art. ii, Sec. 3. 
 
44 THE CONSTITUTION OF ILLINOIS 
 
 religious worship were inserted into all the subsequent con- 
 stitutions adopted before Illinois became a state, 1 with the 
 single exception of Louisiana, 1812, in which state the pre- 
 vailing religion was that of the Roman Catholic Church, 2 
 and the first article of compact of the Northwest Ordinance 
 declared that no person demeaning himself in a peaceable 
 and orderly manner should ever be molested on account of 
 his mode of worship or religious sentiments.3 
 
 In the first constitution of Illinois the guarantee of liberty 
 of conscience and religion contained detailed provisions 
 taken from a number of different constitutions, relative to 
 the natural and indefeasible right to worship according to 
 the dictates of one's own conscience and the freedom from 
 control in that respect by any human authority; immunity 
 from taxation for the support of any place of worship or 
 ministry ; prohibition on giving preference by law to any 
 religious establishment or mode of worship, and a require- 
 ment that no religious test ever be demanded as a qualifica- 
 tion to any office in the state. These provisions were all 
 adopted verbatim into the constitution of 1848, as also into 
 the proposed constitution of 1862. In the convention of 
 1847 tne committee reported a qualification on the prohibi- 
 tion against being compelled to erect or support a place of 
 worship against one's consent, by the addition of the words 
 " contrary to what he has deliberately and voluntarily en- 
 gaged to perform." This qualifying phrase, which was 
 found in a number of the other constitutions, might have 
 proved to be of considerable importance had the state courts 
 
 1 In a number of the states, however, political equality was assured to those 
 only who professed the Protestant faith. 
 
 2 The French Declaration of the Rights of Man had, however, guaranteed the 
 free exercise of religion. Rights of Man, section 7. Lieber, " Civil Liberty and 
 Self-Government," p. 537. 
 
 3 Thorpe, " American Charters, Constitutions and Organic Laws," vol. ii, p. 960. 
 
BILL OF RIGHTS 
 
 45 
 
 taken the same view of the language of this prohibition that 
 the United States Supreme Court did of the prohibition of 
 the thirteenth amendment of the federal constitution, by 
 which " involuntary servitude " was held to mean personal 
 service, involuntary at time of performance even though 
 voluntarily contracted for. 
 
 The section in the present constitution with reference to 
 religious freedom and liberty of conscience is even more 
 comprehensive than that of the former constitutions, though 
 in substance quite similar. The added provision that " no 
 person shall be denied any civil or political right, privilege 
 or capacity on account of his religious principles " had been 
 reported out by the committee in the convention of 1847, 
 but was omitted in the section as finally adopted. It was 
 introduced to cover both the matter of competency of wit- 
 nesses as found in the New York constitution of 1846 as 
 well as the then existing Illinois provision as to religious 
 tests as qualifications for office, omitted in the present 
 constitution. 
 
 The express limitation of the guarantee of liberty of con- 
 science so as to permit the requirement of oaths or affirma- 
 tions, and to exclude the commission of acts of licentious- 
 ness or practices inconsistent with the peace or safety of the 
 state, was not found in the constitution of 1848, though the 
 then recent trouble with the Mormons would have seemed 
 to call especially for such a proviso at that time. In the 
 convention of 1869 the introduction of this proviso, then 
 found in over one-third of the existing constitutions, called 
 forth considerable opposition to its adoption, on the ground 
 that the proviso was inconsistent with the preceding guar- 
 antee of religious freedom. 1 
 
 The last sentence of the section, viz., the prohibition on 
 
 1 Debates of the Convention of 1869, p. 1560. 
 
4 6 
 
 THE CONSTITUTION OF ILLINOIS 
 
 compelling attendance on or support of any ministry or 
 place of worship, and on giving any preference by law to 
 any religious denomination or mode of worship presents no 
 material change from the earlier provisions on these points. 
 In the convention of 1869 there were presented four peti- 
 tions, requesting an express constitutional protection of the 
 right to observe the seventh day of the week as the Sabbath, 
 and an additional section exempting persons who consci- 
 entiously observe the seventh day as the Sabbath from 
 answering civil process on that day, was moved and adopted, 
 but on reconsideration was stricken out. 2 
 
 The Illinois cases construing this section of the constitu- 
 tion are few in number, but some of the general principles 
 to be gathered from the construction of similar provisions 
 in other constitutions will show how the courts have in gen- 
 eral viewed the protection embodied in such provisions. 
 The express prohibitions of the section guarantee not only 
 religious toleration, but religious equality. They do not 
 however prohibit the authorities from such solemn recogni- 
 tion of a superintending Providence in public transactions 
 and exercises as the general religious sentiment of mankind 
 inspires. 1 Nor does the right of free thinking and free 
 speech justify blasphemy, or prevent its punishment by the 
 law, when uttered in a wanton manner with a wicked and 
 malicious disposition and not in a serious discussion upon 
 any controverted point in religion. 2 La\vs requiring the 
 observance of the Christian Sabbath are almost universally 
 upheld as not violating this constitutional provision, though 
 Cooley questions the entire soundness of that view. 3 
 
 In Illinois under the present constitution the right to 
 
 1 Debates of the Convention of 1869, pp. 1566, 1777. 
 
 * Cooley, " Constitutional Limitations." p. 668. 
 
 * Ibid., p. 673. ^Ibid., p. 675. 
 
BILL OF RIGHTS 47 
 
 testify is included among the civil rights, privileges, and 
 capacities which are protected by this section against denial 
 by reason of religious opinions, 1 though under the earlier 
 constitutions an atheist was, in accordance with the common- 
 law rule, incompetent as witness. 2 The constitution of 1870, 
 therefore, abrogated all restrictions as to the competency of 
 witnesses on account of defect of religious beliefs 
 
 Section 4..* Liberty of speech and of the press, under cer- 
 tain limitations, was protected in England by the principles 
 of the common law, and considered essential to the nature of 
 a free state. But in England, for years before the American 
 Revolution, there had been serious invasions of this right, 
 and in the American colonies there had never been any real 
 freedom of speech or of the press. 5 In the seventeenth cen- 
 tury Milton had in England championed these liberties in 
 his Areopagitica^i\& the numerous appeals to natural law 
 by James Otis and John and Samuel Adams in the Ameri- 
 can colonies, all included them among the fundamental in- 
 dividual rights. 6 The Virginia Bill of Rights declared the 
 freedom of the press to be one of the great bulwarks of lib- 
 erty which could never be restrained, and in 1818 the federal 
 constitution and all the state constitutions but two, viz., New 
 Jersey, 1776, and New York, 1/77, contained similar pro- 
 
 1 Ewing v. Bailey, 36 Illinois Appeals, 191 (1890). 
 
 2 Central Military Tract Railroad Company v. Rockafellow, 17 Illinois, 541 
 (1856). 
 
 3 Elrouek v. People, 134 Illinois, 139 (1890). 
 
 4 " Every person may freely speak, write and publish on all subjects, being re- 
 sponsible for the abuse of that liberty, and in all trials for libel, both civil and 
 criminal, ihe truth when published with good motives, and for justifiable ends 
 shall be a sufficient defence." Constitution of Illinois, 1870, Art. ii, Sec. 4. 
 
 6 White, " The Constitution of Pennsylvania," ch. V. 
 
 6 Scherger, " Evolution of Modern Liberty," ch. IX. 
 
48 THE CONSTITUTION OF ILLINOIS 
 
 visions as to freedom of the press, a number of them ex- 
 pressly protecting also the liberty of speech. 
 
 In the first constitution of Illinois freedom of the press was 
 guaranteed to all who examined the proceedings of any 
 branch of the government, this having been the point of at- 
 tack by the English government in the past, and to every 
 citizen was guaranteed the right to freely speak, write and 
 print on any subject, being responsible for the abuse of that 
 liberty. These provisions were embodied without change 
 in the constitution of 1848 and in the proposed constitution 
 of 1862. 
 
 In the constitution of 1870 all but the last sentence was 
 omitted, which contained the essence of the entire section, 
 and every one of the twenty-six other state constitutions 
 then in force guaranteed freedom of the press, which of 
 course includes freedom of speech, either to all persons, as 
 is the case in the Illinois constitution of iS/o, or to all citi- 
 zens, as was done in the earlier Illinois constitutions. 
 
 The establishment of truth when published with good 
 motives and justifiable ends, as a sufficient defense in all 
 trials of libel, both civil and criminal, was inserted to protect 
 more specifically the liberty of press previously guaranteed 
 in general terms. In the constitution of 1818 it was declared 
 that in prosecutions for the publication of papers investigat- 
 ing the official conduct of officers, or of men acting in a 
 public capacity, or where the matter published is proper for 
 public information, the truth might be given in evidence, 
 and that in all indictments for libels the jury should have 
 the right of determining both the law and the fact, as in 
 other cases. 
 
 At common law there had been an important distinction 
 between civil actions for libel and criminal prosecutions for 
 the same as to both of these provisions, viz., the admissibility 
 of truth as a defense, and the function of a jury in a trial for 
 
BILL OF RIGHTS 49 
 
 libel. While truth of the matter published was always a 
 defense to a civil action for libel, since a man had no right 
 to a better reputation than his real character deserved and 
 was therefore not injured by any true statement concerning 
 him, in criminal prosecutions for libel, the truth of the mat- 
 ter published being rather a greater provocative to the per- 
 son libeled to retaliate by acts involving a breach of peace 
 which last consideration was the original basis of all com- 
 mon-law jurisdiction of crimes could not be pleaded as a 
 defense. 1 This rule as regards criminal libel was changed 
 in England by Lord Campbell's Act, 6 and 7 Victoria, chap- 
 ter 96, and the provision in the Illinois constitution of 1818 
 expresses in other terms the general form of the change in 
 law admitting truth as a defense when published with good 
 motives and for justifiable ends. 
 
 As regards the function of the jury in trials for libel, the 
 common-law rule in civil actions left it to the jury, if the 
 words published were ambiguous, to decide whether or not 
 they were libellous, that is, to pass on both the law and the 
 fact. The same doctrine was asserted in several early cases 
 as regards criminal prosecutions for libel, but was subse- 
 quently greatly controverted, and was certainly an anomalous 
 one in the criminal law. 2 But by the Fox Act of 1774 the 
 jury was permitted to render a verdict of guilty or not guilty 
 upon the whole matter in issue, and thus act as judges both 
 of the law and the fact in criminal prosecutions also. The 
 provisions in the Illinois constitution, therefore, adopted the 
 later statutory rule in both of these regards as guaranteeing 
 fundamental rights, as had also previously been done in six 
 other constitutions of that time. The constitution of 1848 
 and the proposed constitution of 1862 both contained the 
 above provisions without the slightest change. 
 
 1 Chase's Blackstone, Book III, ch. VI. a Ibid. 
 
50 THE CONSTITUTION OF ILLINOIS 
 
 In the present constitution of Illinois, the truth when pub- 
 lished with good motives and for justifiable ends was made a 
 sufficient defense in both civil and criminal trials, reaffirm- 
 ing the former provision as to criminal trials, and also plac- 
 ing the defendant in a civil suit under the same constitutional 
 protection. By 1870 the great majority of the other states 
 had inserted a constitutional provision like that in the Illinois 
 constitution of either 1848 or 1870. In the convention of 
 1869 the newspapers of the state sought additional protec- 
 tion in a petition requesting an addition to the provision as 
 to libel to the effect that " it shall in all cases be incumbent 
 upon the plaintiff to prove malice," a change in the common- 
 law rule which might have proved a most undesirable piece 
 of constitutional legislation, and which was wisely rejected. 1 
 
 The provisions of the American bills of rights on the 
 liberty of the press have been quite generally considered to 
 mean only that liberty of publication without the previous 
 permission of the government, which was obtained by 
 the abolition of the censorship, and not to change the 
 common-law rules as to responsibility for libel. But Cooley 
 considers it to include " not only liberty to publish, but 
 complete immunity from legal censure and punishment for 
 the publication so long as it is not harmful in character 
 when tested by the common-law standards in force when the 
 constitutional guarantees were established and in reference 
 to which they have been adopted," 2 the phrase "being re- 
 sponsible for the abuse of that liberty" meaning, therefore, 
 subject to the common-law liability for defamation. 
 
 1 At common law malice was conclusively inferred from the falsity and defama- 
 tory nature of the charge, unless the defendant established privilege of communi- 
 cation. Chase's Blackstone, p. 683. 
 
 * Cooley, " Constitutional Limitations," p. 695. 
 
BILL OF RIGHTS 5 ! 
 
 Section jV: Of the concrete rights to which the colonists 
 by reason of their English descent laid claim, no longer as 
 English subjects, however, but as individuals in a state, one 
 of the most precious and essential was the right of trial by 
 jury. This ancient bulwark of individual liberty whose 
 origin, according to Blackstone, is to be sought as far back 
 as the Saxon colonies, though not firmly established until 
 the abolition of the Saxon trials by ordeal, and the Norman 
 trial by battle, was first formally declared by Magna Charta 
 of King John in 1215 in the king's solemn agreement that 
 no freeman should be hurt in either his person or property, 
 " unless by the legal judgment of his peers or the law of 
 the land." The chief grievance in the Petition of Right of 
 1628 was the violation of this provision, and among the 
 oppressions of King George III enumerated in the Declara- 
 tion of Independence was that of depriving the colonists, in 
 many cases, of the benefits of trial by jury. It is no wonder, 
 therefore, that every one of the constitutions of the revolu- 
 tionary period contained express guarantees of jury trial, 
 a precedent of constitutional practice which has persisted 
 down to the latest constitutions, at least as regards criminal 
 prosecutions for major offenses. 2 ' Jury trial was also ex- 
 pressly protected in the Northwest Ordinance of 1787. 
 
 The Illinois constitution of 1818 contained the simple pro- 
 vision that the right of trial by jury should remain inviolate, 
 but in the constitution of 1848 there was added the stipula- 
 
 1 " The right of trial bv jury, as heretofore enjoyed, shall remain inviolate, but 
 the trial of civil cases before justices of the peace, by a jury of less than twelve 
 men may be authorized by law." Constitution of Illinois, 1870, Art. ii, Sec. 5. 
 
 2 It is somewhat remarkable that in spite of the reverence of the English for 
 the jury trial, and the great emphasis placed upon it by Blackstone and others, 
 who considered it a right of viial importance, firmly established as a constitu'ional 
 principle of English jurisprudence by the Great Charter, the United States Supreme 
 Court should have declared that it is not part of " due process " as guaranteed by 
 Amendment XIV of the Federal Constitution. Walker v. Sauvinet, 92 U. S., 90. 
 
52 THE CONSTITUTION OF ILLINOIS 
 
 tion that it should extend to all cases at law, without regard 
 to the amount in controversy, a provision not found in any 
 other state constitutions, in a number of which, indeed, there 
 were mentioned express exceptions to the general require- 
 ment of jury trial. 
 
 The present constitution, though declaring that the right 
 of trial by jury as heretofore enjoyed, should remain inviolate, 
 adds that the trial of civil cases before justices of the peace 
 by a jury of less than twelve men might be authorized by 
 law, which is a direct reversal of the provision in the consti- 
 tution of 1848, and had previously been embodied in the 
 proposed constitution of 1862. This proviso might, it seems, 
 be regarded as one manifestation of a growing conviction, 
 that the sacred and time-honored trial by jury, however 
 worthy of esteem and respect by reason of its important role 
 in the history of individual liberty in the past, is not alto- 
 gether above criticism, and that whether by reason of changed 
 external conditions, or because of the manner in which it 
 has come to be administered, the system of trial by jury 
 demands substantial revision to keep it from becoming more 
 and more a clog on the wheels of justice. Considerable evi- 
 dence of this feeling was found in various motions relating 
 to jury trial introduced in this convention of 1869; x one of 
 which proposed to add that a concurrence of three-fourths 
 of a jury should in all cases constitute a verdict. Several 
 other less radical modifications were offered, but one proposal 
 went so far as to authorize juries to return a verdict of " not 
 proven," after which the defendant might again be indicted 
 for the same offence upon additional evidence being dis- 
 covered. 
 
 The guarantee of jury trial " as heretofore enjoyed," means 
 not as enjoyed in 1869 by statute, but as enjoyed by the 
 
 1 Debates of the Convention of 1869, pp. 1567, 1568. 
 
BILL OF RIGHTS 
 
 53 
 
 common law of England. This means that in case of a per- 
 son charged with felony, " a jury of twelve men must be im- 
 panelled ; the jury must be indifferent between the prisoner 
 and the people ; they must be summoned from the vicinage 
 or body of the country in which the crime was alleged to 
 have been committed ; they must unanimously concur in 
 the verdict, and the court cannot interfere to coerce them to 
 agree upon a verdict against their convictions." x This right 
 to trial by jury cannot be waived in case of felony except by 
 a plea of guilty, 2 but in cas*es of misdemeanor the defendant 
 may put himself upon the court for trial. 3 This guarantee 
 extending only to cases in which jury trial was required at 
 common law does not extend to cases of contempt proceed- 
 ings, equity proceedings, statutory proceedings not known 
 to the common law, eminent domain proceedings, etc., in 
 all of which the common-law procedure was not applied. 4 
 
 Section 6. 5 At common law the citizen was protected 
 against seizure of person or property by very strict rules 
 regarding the issuing of warrants, and immunity in his home 
 against unreasonable searches and seizures was embodied in 
 the maxim that " every man's house is his castle." The 
 desire of the colonists to protect these rights by constitu- 
 tional provisions is in part traceable to the abuse of execu- 
 tive authority in England in violating these rights in order 
 
 1 George v. People, 167 Illinois, 447 (1897). 
 
 2 Morgan v. People, 136 Illinois, 161 (1891). 
 
 3 Darst v. People, 51 Illinois, 286 (1869). 
 
 4 184 Illinois, 475; 1 73 Illinois, 144; 103 Illinois, 367; 23 Illinois, 202. 
 
 5 " The right of the people to be secure in their persons, houses, papers and 
 effects against unreasonable searches and seizures shall not be violated; and no 
 warrant shall issue without probable cause, supported by affidavit, particularly de- 
 scribing the place to be searched and the persons or things to be seized." Con- 
 stitution of Illinois, 1870, Art. ii, Sec. 6. 
 
54 THE CONSTITUTION OF ILLINOIS 
 
 to obtain evidence of political offences, which practice was 
 finally overthrown in 1765 by Lord Camden. 1 
 
 In the colonies themselves, moreover, the practice of 
 issuing writs of assistance to the revenue officers, authorizing 
 them to search suspected places at their discretion, had al- 
 ready caused great dissatisfaction ten years before this date, 
 and had been denounced by Otis as " the worst instrument 
 of arbitrary power, the most destructive of English liberty 
 and the fundamental principles of law that ever was found in 
 an English law book." 2 This prohibition of general warrants 
 has been characterized as the only constitutional principle 
 to be first established in America and later adopted in 
 England. 3 
 
 The Virginia Bill of Rights of 1776 had contained an 
 express prohibition on general warrants of search and seizure 
 which was incorporated in the constitution of Illinois, 1818, 
 following the declaration that the people should be secure in 
 their persons, houses, papers and possessions from unreason- 
 able searches and seizures. Almost all of the other consti- 
 tutions in 1818 contained similar provisions, and this section 
 in the Illinois constitution of 1818 was retained without 
 change in the constitution of 1848, at which time all but 
 four of the twenty-eight other constitutions embodied similar 
 provisions. 
 
 There was no alteration of this section in the constitution 
 of 1862, but the convention of 1869 changed the phraseology 
 somewhat by adopting almost verbatim the form of the fourth 
 amendment to the federal constitution. At the time of fram- 
 ing the present Illinois constitution there was one state con- 
 stitution only which did not contain a similar provision, viz., 
 New York, 1846, which still continued under the constitu- 
 
 1 Cooley, " Constitutional Limitations," pp. 424 ff. 2 Ibid. 
 
 3 Stimson, " Federal and State Constitutions of the United States," p. 149, n. 10. 
 
BILL OF RIGHTS 55 
 
 tion in force in 1848, when the prior Illinois constitution 
 was adopted. 
 
 The purpose of this constitutional prohibition was to 
 establish the common-law rule as to searches and seizures, 
 which had always been extremely jealous of the right of the 
 individual to immunity from such interference with his per- 
 son and property. Unreasonable searches and seizures are 
 those without warrant properly obtained in cases where the 
 common law required them. But arrests without warrant 
 are not abridged by the constitution where such arrests 
 could be made at common law before its adoption. 1 Prob- 
 able cause must be shown by the production of evidence 
 satisfactory to the court of such facts as to convince the 
 magistrate that the suspicion is well founded, 2 and to justify 
 the issuing of a warrant the affidavit must state either that 
 the person therein described committed the offence or that 
 the person making the complaint has just and reasonable 
 grounds to suspect, or does in fact suspect, that he is guilty 
 of the offence. 3 
 
 Section 7* The provision that all persons shall be bailable 
 by sufficient sureties except for capital offences where the 
 proof is evident or the presumption great represents in effect 
 the common-law rule of England as to bail. 5 Since by the 
 concept of the common law every man was regarded innocent 
 
 1 North v. People, 139 Illinois, 81 (1891). 
 3 White v. Wagar, 185 Illinois, 195 (1900). 
 
 3 Housh v. People, 75 Illinois, 487 (1874). 
 
 4 " All persons shall be bailable by sufficient sureties, except for capital offenses, 
 where the proof is evident or the presumption great; and the privilege of ihe writ 
 of habeas corpus shall not be suspended, unless when in cases of rebellion or in- 
 vasion the public safety may require it." Constitution of Illinois, 1870, Art. ii, 
 Sec. 7. 
 
 5 Chase's Blackstone, p. 1001. 
 
56 THE CONSTITUTION OF ILLINOIS 
 
 until proved guilty, it followed also that every man was to 
 be treated with all possible leniency even after arrest for 
 crimes, and that confinement in jail should not be resorted 
 to if the appearance of the accused for trial could be assured 
 in some other way. Hence at common law every man was 
 entitled to be released on bail before conviction upon suffi- 
 cient sureties, except for capital offences, on charges based 
 on more than a mere suspicion, when indeed the public 
 welfare demanded the highest surety, viz., the custody of the 
 accused himself. 
 
 Though the first American Bill of Rights contained no 
 express guarantee of the right to bail, it was impliedly guar- 
 anteed in the prohibition against requiring excessive bail, 
 which had been forbidden in England by Statute I W. & 
 M. 2, Ch. i, and in the Northwest Ordinance it had been 
 declared that all persons shall be bailable unless for capital 
 offences where the proof is evident or the presumption 
 great. 
 
 The first Illinois constitution guaranteed the right to bail 
 in the terms which have been retained in all three of the 
 later constitutions. 1 About one-half of the constitutions 
 then in force contained similar express guarantees of the 
 right to bail and most of the others impliedly guaranteed it 
 by such provisions as the ones adopted in the Virginia Bill 
 of Rights. 
 
 Closely connected with the guarantee of bail is the guar- 
 antee of the writ of habeas corpus, which was another com- 
 mon-law right of English subjects and was re-affirmed in 
 the Habeas Corpus Act of 1679.* This writ which secured 
 to the individual a hearing as to the legality of his imprison- 
 ment and which was, and is, characteristic of the English 
 
 1 Illinois is the only state that has no prohibition on excessive bail. Stimson, 
 supra, p. 105. 
 
 2 Stubbs, " Select Charters," p. 517. 
 
BILL OF RIGHTS 
 
 57 
 
 law alone, 1 was deemed one of the most important of individual 
 rights, and the Habeas Corpus Act was regarded as the 
 " second Magna Charta and stable bulwark of liberties." 
 
 In England the privilege of this writ could legally be sus- 
 pended in cases of evident public necessity, but only upon 
 authority given by Parliament to the Crown. The possibility 
 of such an exigency was provided for in the first Illinois 
 constitution by the provision qualifying the prohibition of 
 suspending the writ, viz., " unless when in cases of rebellion 
 or invasion the public safety may require it." 
 
 In the Northwest Ordinance of 1787 the inhabitants of the 
 Territory had been declared to be always entitled to the 
 benefits of the writ of habeas corpus, and provisions were 
 found in 1818 in over half of the other state constitutions 
 similar to the one in the first Illinois constitution, which was 
 retained without change in the subsequent constitutions of 
 the state. 
 
 Section 8* The protection against criminal prosecution 
 except after indictment by grand jury, that is, formal accusa- 
 tion by a body of from twelve to twenty-three sworn men of 
 the country, extends even farther back in English criminal 
 procedure than does the right to trial by petit jury, and has 
 been traced to the Hundred Courts of Aethelred. 3 At com- 
 
 1 " There is on the continent nothing corresponding to the constitutional right 
 of any individual when arrested by an officer of the government to demand in- 
 stant information of the cause of his arrest and to be set at large unless indicted 
 by a grand jury for a crime not bailable or for which the person accused is un- 
 able to give satisfactory bail." Stimson, " Federal and State Constitutions," p. 18. 
 
 2 " No person shall be held to answer for a criminal offence, unless on indict- 
 ment of a grand jury except in cases in which the punishment is by tine or im- 
 prisonment otherwise than in the penitentiary, in cases of impeachment and in 
 cases arising in the army or navy or in the militia when in actual service in time 
 of war or public danger : Provided, that the grand jury may be abolished in all 
 cases." Constitution of Illinois, 1870, Art. ii, Sec. 8. 
 
 8 Stimson, " Federal and State Constitutions," p. 169, note. 
 
58 THE CONSTITUTION OF ILLINOIS 
 
 mon law indictments or presentments by grand jury were in 
 general required in all cases, though for misdemeanors the 
 method of accusation by information was used as well, espec- 
 ially in cases of misdemeanors that tended to disturb or en- 
 danger the government. But this latter species of proceeding 
 was looked upon with great disfavor in England because of its 
 abuse in the times preceding the revolution, and was there 
 later regulated by statute. 1 In America also this accusation 
 by information was very unpopular, though only one of the 
 revolutionary constitutions, viz., North Carolina, 1776, con- 
 tained any other guarantee of indictment by grand jury than 
 that contained in the provision establishing the English com- 
 mon law as the law of the states. 
 
 When, however, the first constitution of Illinois came to 
 be framed, the federal constitution had expressly guaranteed 
 the right to indictment, and seven other states had followed 
 this precedent in their constitutions. The Illinois constitu- 
 tion of 1818 provided that no indictable offence should be 
 proceeded against criminally by information, a principle 
 that went beyond the common-law rule which recognized 
 some kinds of offences that could be proceeded against by 
 either indictment or information. The exceptions recog- 
 nized in the constitution of 1818 were the same as existed at 
 common law, namely, trial by court martial, and by impeach- 
 ment, to which proceedings the requirement of grand jury 
 indictment never applied. 
 
 In the constitution of 1848 indictment or presentment of a 
 grand jury was required for all offences punished with im- 
 prisonment or death, or fine above one hundred dollars, 
 except in cases of impeachment or cases arising in the army 
 or navy or in the militia when in actual service in time of 
 war or public danger. Similar provisions existed at that 
 
 1 Chase's Blackstone, ch. XXI. 
 
BILL OF RIGHTS 
 
 59 
 
 time in all but eight of the state constitutions, and of these 
 eight, six were still the early constitutions adopted before 
 the first Illinois constitution. Of the two others, one was 
 that of the civil law state of Louisiana, and the other was 
 that of Virginia, which had retained its original Bill of 
 Rights of 17/6 in its second constitution. 
 
 It appears, therefore, that the indictment by grand jury 
 came to have growing importance in the American bills of 
 rights in the thirty years between the framing of the first 
 and second Illinois constitutions, and in the proposed con- 
 stitution of Illinois of 1862 there was embodied the same 
 guarantee. 
 
 But in the Illinois convention of 1869 there was evidenced 
 considerable opposition to the grand jury system. Some 
 motions suggested a reduction in the total number of grand 
 jurymen, or in the number required for a finding, and some 
 advocated the abolition of the grand jury with power in the 
 legislature to re-establish it, while others, more extreme, 
 went to the length of demanding complete abolition. 1 Sev- 
 eral speeches in strong denunciation of the evils of the grand 
 jury system were delivered while others as warmly defended 
 it. 2 This agitation terminated finally in the proviso now 
 found in section 8, to the effect that the grand jury may 
 be abolished by law in all cases, leaving the advisability of 
 abolishing this ancient system to be determined by the legis- 
 lature, which that body in the forty years since the authority 
 was conferred upon it has not seen fit to do. 3 It is interest- 
 ing to note that of the twenty-four state constitutions which 
 in 1870 expressly guaranteed indictment by grand jury, 
 
 1 Debates of the Convention of 1869, p. 174. 
 
 2 Ibid., pp. 1434-1438, 1440-1442. 
 
 3 Recent evidence of continued opposition to the grand jury system is furnished 
 by the introduction into the last two sessions of the Illinois legislature of bills to 
 abolish the system. 
 
60 THE CONSTITUTION OF ILLINOIS 
 
 Illinois was the only one that permitted it to be abolished 
 by the legislature, although Indiana, which, however, had 
 not expressly protected it, had in 1851 adopted a similar 
 provision. 1 
 
 In Illinois, under the present constitution, what was prac- 
 tically the common-law rule as to grand jury indictment is 
 confirmed. Indictment is essential to the legal prosecution 
 of persons charged with crime punishable by penitentiary 
 imprisonment, 2 and where conviction would result in dis- 
 qualification to hold public office, 3 but not to hold persons 
 to answer for misdemeanors. 4 The proviso at the end of 
 the section virtually authorizes the legislature to change a 
 constitutional provision, but that its effect is not, as might at 
 first appear to be the case, to nullify the whole section 
 would seem to be shown by the reluctance evidenced by the 
 subsequent legislatures of Illinois to alter a system which 
 the constitution of the state evidently wished to favor. 
 
 Section p. 5 The rights of the accused in criminal prosecu- 
 tions guaranteed by this section were for the most part rights 
 to which English subjects were entitled by the common law and 
 which were considered essential attributes of personal liberty 
 and security. So at common law an indictment could not be 
 tried unless the defendant personally appeared. So also the 
 
 1 Constitution of Indiana, 1851, Art. vii, sec. 17. 
 
 '* Paulsen v. People, 195 Illinois, 507 (1902). 
 
 3 People v. Kipley, 171 Illinois, 44 (1897). 
 
 *Brewster v. People, 183 Illinois, 143 (1899). 
 
 5 " In all criminal prosecutions the accused shall have the right to appear and 
 defend in person and by counsel; to demand the nature and cause of the accusa- 
 tion and to have a copy thereof; to meet the witnesses face to face, and to have 
 process to compel the attendance of witnesses in his behalf and a speedy public 
 trial by an impartial jury of the county or district in which the offense is alleged 
 to have been commuted." Constitution of Illinois, 1870, Art. ii, Sec. 9. 
 
BILL OF RIGHTS 5 1 
 
 defendant was entitled to the assistance of counsel as to the 
 matters of law arising on the trial. As to other matters the 
 defendant was not entitled to counsel, on the principle that 
 the judge should be counsel for the prisoner and see that 
 the proceedings against him were legal and strictly regular. 
 But Blackstone rightly speaks of this latter rule as " not at 
 all of a piece with the rest of the humane treatment of 
 prisoners by the English law " and states that the judges 
 never scrupled to allow a prisoner the assistance of counsel 
 to instruct him what questions to ask or even to ask questions 
 for him, with respect to matters of fact. 1 
 
 When the prisoner was arraigned, the indictment, which 
 contained in great detail all matters bearing on the accusa- 
 tion, was read to him that he might fully understand his 
 charge, which was all that was necessary at a time when the 
 general inability to read, especially among the criminal 
 classes, made a requirement of a copy for the defendant 
 superfluous. 
 
 The right to meet the witnesses for the prosecution and to 
 question them was also a common-law right, though the 
 defendant had no right by the early rule to introduce wit- 
 nesses in his own behalf in capital cases. 2 But by Statute 
 i Ann. 2, ch. 9, it was declared that in all cases of treason 
 and felony all witnesses for the prisoner should be examined 
 upon oath in like manner as the witnesses against him. 
 Finally the right to a trial by a jury of the county where the 
 fact was committed was also recognized by the common law 
 and insisted upon as one of the greatest protections for the 
 accused, based on the early theory that the jurors were wit- 
 nesses, and themselves cognizant of the commission or non- 
 commission in their midst of the act charged. 
 
 The Virginia Bill of Rights enumerated substantially all 
 
 1 Chase's Blackstone, p. 1025. J Ibid., p. 1028. 
 
62 THE CONSTITUTION OF ILLINOIS 
 
 of these rights of the accused, and all but three ' of the con- 
 stitutions in force when Illinois became a state contained 
 express provisions of a similar nature. The first constitution 
 of Illinois declared the rights of the accused in practically 
 the same terms found in the present constitution, and no 
 material change was made in the second constitution. The 
 right of the defendant to compel the attendance of witnesses 
 in his favor had been protected in two-thirds of the constitu- 
 tions then in force. The present constitution contains the 
 additional provision that the accused have the right to a 
 copy of the accusation, a right guaranteed in nine other 
 constitutions in force in 1870. In the convention of 1869 
 it was suggested to guarantee to the defendant the right to 
 have his counsel close the argument to the jury, and also to 
 make non-freeholders incompetent as jurors, if objected to 
 on that ground, but otherwise no changes in the provisions 
 of the former constitutions were proposed. 
 
 The provisions of the present constitution, like the re- 
 quirements of the common law in this respect, refer only to 
 nisi prius- trials, that is, not to appeals or other proceedings 
 of review in higher courts. 2 The presence of the accused, 
 though essential in cases of felony, is not necessary at the trial 
 of mere misdemeanors, 3 and may in this latter case be waived 
 by him. 
 
 The right to appear by counsel includes the right to have 
 one's counsel allowed a reasonable time for argument. 4 
 
 The purpose of requiring a copy of the accusation is to 
 secure such specific designation of the offence charged as to 
 enable the defendant to prepare fully for his defence and to 
 
 1 Georgia 1798, New Jersey 1776, South Carolina 1776. 
 2 Fielden v. People, 128 Illinois, 595 (1889). 
 3 Bloomington v. Ileiland, 67 Illinois, 278 (1873). 
 * White v. People, 90 Illinois, 117 (1878). 
 
BILL OF RIGHTS 63 
 
 plead the judgment in bar of a subsequent prosecution for 
 the same offence. 1 
 
 The right to meet the witnesses face to face excludes all 
 evidence by deposition in criminal trials, with the single 
 exception of dying declarations. 2 
 
 The right to a speedy trial guarantees against arbitrary 
 and oppressive delays only, not such as are due to conges- 
 tion of cases on the docket, 3 and the requirement of a public 
 trial is not violated when the doors of the court room are 
 closed for a temporary purpose during the trial of a criminal 
 case if not for the purpose of excluding anyone connected 
 with the trial. 4 The guarantee of an impartial jury means a 
 jury impartial in the sense in which that term was under- 
 stood at common law, 5 that is, chosen under the safeguards 
 with which the common law surrounded the choice of jurors. 6 
 Finally, the requirement of a jury of the county or district 
 may be waived by the defendant by asking a change of venue. 7 
 
 Section io. 8 In the same category with the rights of the 
 accused protected in the preceding section is the freedom 
 from self-incrimination and from double jeopardy, which was 
 also carefully protected by the rules of the common law. 
 Firstly, it was an established rule of evidence that confessions 
 were not admissible as evidence unless they were freely 
 
 1 West v. People, 137 Illinois, 189 (1891). 
 2 Starkey v. People, 17 Illinois, 17 (1855). 
 3 Weyrich v. People, 89 Illinois, 90 (1878). 
 * Stone v. People, 3 Illinois, 326 (1840). 
 5 Coughlin v. People, 144 Illinois, 140 (1893). 
 
 6 See Chase's Blackstone, ch. xxv. 
 
 7 Weyrich v. People, 89 Illinois, 94 (1878). 
 
 8 " No person shall be compelled in any criminal case to give evidence against 
 himself, or be twice put in jeopardy for the same offense." Constitution of 
 Illinois , Art. ii, Sec. io. 
 
64 THE CONSTITUTION OF ILLINOIS 
 
 given without fear of harm or hope of favor, and a confession 
 obtained by compulsion, though used when the trial by 
 ordeal and other inquisitorial trials were still in force, was 
 not admissible in the later common-law prosecution of 
 crimes. Says Cooley, 1 " A peculiar excellence of the com- 
 mon law system of trial consists in the fact that the accused 
 is never compelled to give evidence against himself." 
 
 So also of the protection against double jeopardy, Black- 
 stone says * it is a " universal maxim of the common law of 
 England that no man is to be brought into jeopardy of his 
 life more than once for the same offence," and in every case 
 the defendant might plead former jeopardy in bar of the 
 accusation. 
 
 The guarantee against being compelled to give evidence 
 against oneself was put into the Virginia Bill of Rights and 
 into all but four of the other constitutions in force prior to 
 1818, including the federal constitution. But the protection 
 against double jeopardy was found in only one-half .of those 
 same constitutions, not having been inserted into the proto- 
 type of the early bills of rights. In the first Illinois consti- 
 tion both of these provisions were embodied and they have 
 remained in the same terms down to the present constitu- 
 tion, being adopted by the convention of 1869 from the 
 former constitutions without comment. Both guarantees 
 existed in almost all the other constitutions in force in 1870. 
 
 The constitutional protection against self-incrimination 
 means that neither a witness nor the defendant in a criminal 
 case need answer any question the answer to which will ex- 
 pose him to any penalty, fine, forfeiture, or punishment, or 
 which will have a tendency to accuse him of any crime or 
 misdemeanor, or to expose him to any penalty or forfeiture, 
 
 1 " Constitutional Limitations," ch. x, 442. 
 2 Chase's Blackstone, p. 1019. 
 
BILL OF RIGHTS 65 
 
 or which would be a link in a chain of evidence to convict 
 him of a criminal offense. 1 But this privilege is personal to 
 the witness and he may waive it without consent of the de- 
 fendant. 2 Furthermore, this constitutional privilege cannot 
 be claimed if by reason of an immunity statute the evidence 
 obtained under compulsion can in no way be used as a basis 
 in aid of a prosecution which might result in fine, imprison- 
 ment, penalty, or forfeitures 
 
 The protection against double jeopardy means that no 
 person shall twice be put in peril of conviction for the same 
 act and offense, 4 and whether two indictments are for the 
 same offense must be determined by an inspection and com- 
 parison of the indictments. 5 If the facts charged in the 
 second indictment would have sustained a conviction under 
 the first indictment, the plea of former jeopardy is good, 6 
 but where the facts charged in the second indictment would 
 not, if proved, have warranted conviction under the first, 
 the plea of former jeopardy cannot be maintained. 7 
 
 The verdict itself forms the bar to subsequent prosecution 
 for the same offense though there is no judgment on it, 8 but 
 where judgment of conviction is arrested or reversed at the 
 instance of the accused he will not in legal contemplation 
 have been in jeopardy, but may again be put on trial for the 
 
 1 Lamson v. Boyden, 160 Illinois, 613 (1896). 
 
 2 Samuel v. People, 164 Illinois, 379 (1897). 
 
 3 People v. Butler St. Foundry, 201 Illinois, 236 (1903). The immunity clause 
 in the act here in question was as follows: "Provided that no corporation etc. 
 shall be subject to any criminal prosecution by reason of anything truth- 
 fully disclosed by the affidavit required by this act or truthfully disclosed in any 
 estimony elicited in the execution thereof." 201 Illinois, p. 243. 
 
 *Freeland v. People, 16 Illinois, 380 (1855). 
 
 5 Durham v. People, 5 Illinois, 172 (1843). * Ibid. 
 
 7 Guedel v. People, 43 Illinois, 226 (1867). 
 
 8 Hankins v. People, 106 Illinois, 628 (1883). 
 
66 THE CONSTITUTION OF ILLINOIS 
 
 same offense. 1 So also if the jury is discharged in case of 
 disagreement, the former jeopardy will not be available as a 
 plea to a new trial. 2 
 
 When the same act constitutes several offenses, trial and 
 punishment for one will be no bar to a prosecution for the 
 others growing out of the same transaction. 3 So for instance, 
 where one single act violates a local ordinance, a state law, 
 and a law of the United States, there are three distinct offenses 
 which are punishable as such. Similarly in case of an act 
 which is both a contempt of court and an indictable crime, 
 the indictment and the proceeding for contempt are entirely 
 distinct and neither will be a bar to the other. 4 
 
 Section n. 5 Of the three provisions in the next section, 
 the first one, requiring that all penalties shall be propor- 
 tioned to the nature of the offence, can be found in Eng- 
 land as early as Magna Charta, where it is declared that 
 " a freeman shall not be amerced for a small offence, but 
 according to the degree of the fault and for a great crime in 
 proportion to the heinousness of it." 6 The spirit of this 
 prohibition was expressed in the early American constitu- 
 tions either by a provision like that in the English Bill of 
 Rights against excessive fines and cruel and unusual pun- 
 ishments, 7 found in the Virginia Bill of Rights and in the 
 
 1 Gerhard v. People, 4 Illinois, 362 (1842). 
 
 2 Dryer v. People, 188 Illinois, 40 (1900). 
 8 Trausch v. Cook County, 147 Illinois, 534 (1893). 
 * Beattie v. People, 33 Illinois Appeals, 651 (1889). 
 
 6 " All penalties shall be proportioned to the nature of the offense; and no con- 
 viction shall work corruption of blood or forfeiture of estate; nor shall any per- 
 son be transpoited out of the state for any offense committed within the same." 
 Constitution of Illinois, 1870, Art. ii, Sec. II. 
 
 6 Magna Charta, Cap. 20, Stubbs "Select Charters," p. 299. 
 
 7 This prohibition had already been anticipated in the Massachusetts Body of 
 Liberties, clauses 43, 45, and 46. Stimson, " Federal and State Constitutions," 
 p. 22. 
 
BILL OF RIGHTS 
 
 6 7 
 
 federal constitution, or by a requirement that all penalties 
 shall be proportioned to the nature of the offence, as in the 
 Illinois constitution of 1818. In one or the other of these 
 two forms this early provision of Magna Charter existed in 
 over half the constitutions in force in 1818, and Article V 
 of the Northwest Ordinance had provided that " all fines 
 shall be moderate and no cruel or unusual punishments shall 
 be inflicted." 
 
 The second provision, to the effect that no conviction 
 should work corruption of blood or forfeiture of estate, is 
 directed against the common-law rule that descent could not 
 be traced through a person convicted of treason or felony, 
 and that his real and personal property were, therefore, 
 forfeited ; the former to the lord of the fee, the latter to the 
 king. These incidents of treason and felony prevailed from 
 the earliest time, and had their source in the feudal theory 
 that property, especially realty, was held of a superior lord 
 upon the condition of discharging duties attaching to it, and 
 was forfeited by breach of these conditions. 1 This prohib- 
 ition was not found in the earliest Bill of Rights nor in the 
 federal^constitution, and when the first Illinois constitution was 
 framed, only three other constitutions contained the prohibi- 
 tion exactly, though four others contained it in modified 
 form. 
 
 The last provision in this section forbidding deportation 
 for crime committed within the state was occasioned by 
 the English statutes just prior to the American Revolution, 
 making deportation a substantive punishment. The pun- 
 ishment was unknown at common law, and in 1679 the 
 Habeas Corpus Act had forbidden the deportation of Eng- 
 lish subjects as prisoners out of the kingdom. 2 It was in- 
 troduced as a condition of pardon in case of crimes excluded 
 
 1 Stephen, " History of the Criminal Law of England," vol. i, p. 487. 
 
 2 Stubbs, " Select Charters," p. 52. 
 
68 THE CONSTITUTION OF ILLINOIS 
 
 from clergy, 1 and by reason of statutes passed in the eigh- 
 teenth century, had become part of the law of the colonies 
 upon their separation from England. This provision was, 
 however, very rare in the early constitutions and in 1818 
 only three of the eighteen then existing state constitutions 
 contained such a prohibition. 2 
 
 All three of the above provisions were adopted in the 
 constitution of 1848, though the committee on the bill of 
 rights omitted all mention of the first two in its report. In 
 the constitution of 1870 these same stipulations were re- 
 tained without change, though it was suggested among 
 other changes to add that the death penalty should never be 
 inflicted.3 
 
 The question whether the imposition in a particular in- 
 stance of a punishment, though authorized by the legislature, 
 violates the requirement that penalties should be propor- 
 tioned to the nature of the offense is, of course, left to the 
 discretion of the court. But it is a discretion to be judicially 
 exercised and there may be cases in which a punishment, 
 though within the limits fixed by a statute, is so clearly ex- 
 cessive as to be in violation of this constitutional require- 
 ment. 4 
 
 But whether the penalty imposed by statute on a crime 
 is excessive per se, is a matter primarily for legislative dis- 
 cretion. When the legislature has authorized a designated 
 punishment for a specified crime, the court will not hold it 
 invalid, unless it is a cruel or degrading punishment not 
 known to the common law, or a degrading punishment which 
 had become obsolete in the state prior to the adoption of its 
 
 1 Stephen, supra, pp. 480, 487. 
 3 Mississippi 1817, Ohio 1802, Vermont 1793. 
 'Debates of the Convention of 1869, p. 1573. 
 *Cooley, "Constitutional Limitations," p. 471. 
 
BILL OF RIGHTS 69 
 
 constitution, or is so wholly disproportioned to the offence as 
 to shock the moral sense of the commmunity. 1 
 
 An act imposing the forfeiture of all franchises of a cor- 
 poration as a penalty for any violation of the prohibition of 
 the act on discriminating freight rates was held to contravene 
 this provision of the constitution. 2 But providing an in- 
 creased penalty for a second offence is not imposing a dis- 
 proportionate penalty, for repetition of the offence aggravates 
 the guilt.3 
 
 Section 12* Imprisonment for debt was one of the great 
 defects of the common law from the earliest times until well 
 into the nineteenth century in England, and existed in most 
 of the American colonies for many years, though somewhat 
 mitigated by insolvent laws. But the absurdity and injustice 
 of imprisoning honest debtors was pretty generally realized 
 by 1776, when die first American constitutions were being 
 framed, and seven of the state constitutions in force when 
 Illinois became a state embodied a prohibition against im- 
 prisonment for debt, in the absence of fraud, as one of the 
 guarantees of individual liberty. 5 The constitution of 1848 
 and the proposed constitution of 1862 retained this provision 
 from the earliest constitution, and no change was made in 
 the section when adopted into the present Illinois constitu- 
 tion. 
 
 1 People v. Illinois State Reformatory, 148 Illinois, 413 (1894). 
 2 C. & A. R. R. Co. v. People, 67 Illinois, 11 (1873). 
 
 3 Kelly v. People, 115 Illinois, 583 (1886). 
 
 4 "No person shall be imprisoned for debt unless upon refusal to deliver up his 
 estate for the benefit of his creditors in such manner as shall be prescribed by law; 
 or in cases where there is strong presumption of fraud." Constitution of 'Illinois* 
 1870, Art. ii, Sec. 12. 
 
 5 This principle had already been embodied in the Massachusetts Body of 
 Liberties, 1641, in the provision that no man should be imprisoned for debt if the 
 law could find competent means of satisfaction otherwise from his estate. Stim- 
 son, " Federal and State Constitutions," p. 23. 
 
70 THE CONSTITUTION OF ILLINOIS 
 
 This constitutional guarantee is confined to actions upon 
 contracts express or implied, and does not apply to lia- 
 bilities for torts x nor to fines or penalties arising from a vio- 
 lation of the penal laws of the state, 2 and a court cannot 
 commit for contempt in not obeying a decree to pay money 
 unless the refusal is wilful and not caused by financial in- 
 ability.3 
 
 Section 7J. 4 The right of eminent domain, that is, the 
 power of the state to appropriate to its own use or to that of 
 its agents private property of its citizens needed for public 
 purposes, is inherent in sovereignty, and is as old as govern- 
 ment itself. In early times, moreover, the duty of the state 
 to compensate the individual for property so taken was not 
 recognized, and even in England private property was fre- 
 quently taken for the use of the crown without compensa- 
 tion. 5 But Blackstone in discussing the limitations on the 
 absolute right of private property declares that the legisla- 
 ture alone can act in the exercise of the power of eminent 
 domain, and that only by giving the individual so deprived 
 a full indemnification and equivalent for the injury thereby 
 sustained. 6 Eminent domain differs from taxation in that in 
 the former case the citizen is compelled to surrender to the 
 public something beyond his due proportion for the public 
 
 1 Rich v. People, 66 Illinois, 513 (1873). 
 
 2 Kennedy v. People, 122 Illinois, 649 (1887). 
 
 3 Blake v. People, 80 Illinois, n (1875). 
 
 4 " Private property shall not be taken or damaged for public use without just 
 compensation. Such compensation, when not made by the State, shall be ascer- 
 tained by a jury, as shall be prescribed by law. The fee of land taken for rail- 
 road tracks, without consent of the owners thereof, shall remain in such owners 
 subject to the use for which it is taken." Constitution of Illinois, 1870, Art. ii, 
 Sec. 13. 
 
 5 White, " Constitution of Pennsylvania," ch. xxvi. 
 
 6 Chase's Blackstone, p. 79. 
 
BILL OF RIGHTS 7! 
 
 benefit. It is a primary requisite, therefore, in the appro- 
 priation of lands for public purposes that compensation shall 
 be made therefor. 1 
 
 As this power of eminent domain does not depend upon 
 constitutions but exists independently of them, inherent in 
 sovereignty, no affirmative declaration of the power was 
 requisite in the framing of our American constitutions. But 
 to guard against abuse of the power by the sovereign through 
 its agents it was felt necessary to embody some limitations 
 thereof in the fundamental law of the state. The Virginia 
 Bill of Rights did not contain such a provision nor did any 
 of the other constitutions of that year which were modeled 
 after it. But the Northwest Ordinance had provided for 
 compensation, and when Illinois in 1818 first framed a con- 
 stitution, one-half of the state constitutions then in force 
 contained some limitation of the power of eminent domain. 
 
 In the first Illinois constitution it was provided that no 
 man's property should be taken or applied to public use 
 without the consent of his representatives in the general 
 assembly, nor without just compensation being made to him, 
 which x still showed the distrust of executive usurpation of 
 power so strongly experienced by the American colonists in 
 1776. In the first draft of the Illinois constitution submitted 
 to the convention it was provided that compensation should 
 be previously made, which condition had not formerly been 
 considered essential to the validity of the exercise of the 
 power, at least not when exercised by the state itself. 2 But 
 this suggestion was not at that time adopted. 
 
 No change was made in the provision regarding eminent 
 domain in the constitution of 1848, but important changes 
 were made in the present constitution of 1870. In the first 
 place, while it had been the universal rule that the com- 
 
 1 Cooley, " Constitutional Limitations," p. 812. l Ibid., p. 813. 
 
72 THE CONSTITUTION OF ILLINOIS 
 
 pensation awarded was to be measured by the value of the 
 property taken and the direct injury to the owner from the 
 loss, so that any proper exercise of the powers of govern- 
 ment which did not directly encroach upon the property of 
 an individual or disturb him in his possession or enjoyment 
 would not entitle him to compensation, it was now provided 
 for the first time in any state in the Union, that private 
 property should not be taken or damaged for public use 
 without just compensation. 
 
 This important innovation was not adopted without con- 
 siderable discussion and some opposition in the convention 
 of 1869, mainly on the ground that by departing from the 
 settled rules relating to eminent domain there was no cer- 
 tainty as to where the courts might stop in the application 
 of this new provision, resulting perhaps in making it impos- 
 sible to carry out certain important public improvements be- 
 cause of the extent of damages to be paid to private owners. 
 But this eminently just and reasonable provision was retained 
 and has been copied in a number of the state constitutions 
 adopted since that time. 1 
 
 Another important change introduced in the constitution 
 of 1870 with respect to the right of eminent domain, was the 
 provision as to the manner of ascertaining the compensation 
 due. Under the former constitutions it was left with the 
 legislature to fix the manner of determining such compensa- 
 tion. What the tribunal shall be which is to assess the com- 
 pensation must be determined either by the constitution or 
 by the statute which provides for the appropriation, for the 
 exercise of the right of eminent domain is not one where, as 
 a matter of right, the party is entitled to trial by jury. 2 
 
 But the proceeding being judicial in character, the party 
 in interest is entitled to have an impartial tribunal and the 
 
 1 Cooley, " Constitutional Limitations," p. 810. 2 Ibid., p. 817. 
 
BILL OF RIGHTS 73 
 
 usual rights and privileges which attend judicial investiga- 
 tions, and the convention of 1869 felt that jury trial was the 
 best manner of securing such impartial investigation, in cases 
 where the right was not being exercised by the state itself. 1 
 It was first proposed to provide for an alternative body of 
 three commissioners, appointed by a court of record, to 
 ascertain the compensation, which was the method of assess- 
 ing such compensation under the existing statutes. But 
 this provision was stricken out of the committee report by the 
 convention, many members of which were in favor of pre- 
 scribing even more minutely the process to be followed in 
 assessing compensation by a jury. It was again variously 
 suggested to require compensation to be first made, and fur- 
 ther, several resolutions were introduced with a view to pro- 
 hibiting the deduction of benefits from the compensation to be 
 awarded. This latter proposition aroused much discussion, 
 being regarded by some as essential to a just exercise of the 
 power of eminent domain, and by others as itself most unjust 
 and unreasonable. The general expression of sentiment 
 was, however, distinctly in favor of such a limitation, and it 
 was ir\ fact adopted by the convention, but upon re-refer- 
 ment to the committee was finally omitted. 2 
 
 Various other resolutions and motions relative to the right 
 of eminent domain were introduced, there being more dis- 
 cussion of this section of the bill of rights than of any other, 
 principally due to what were considered the abuses of this 
 right by the public- service corporations, especially the rail- 
 roads which had of late been making such large use of the 
 power. But the convention as a whole realized the wisdom 
 of leaving the matter of detailed regulation of the power to 
 
 1 This provision was taken from the Constitution of New York 1846, and was 
 found elsewhere only in the constitutions of Iowa 1857, Michigan 1850, and Ohio 
 1851. 
 
 2 Debates of the Convention of 1869, pp. 1575 ff. 
 
74 THE CONSTITUTION OF ILLINOIS 
 
 the legislature, and rejected the more radical suggestions, 
 one of which went so far as to provide that no man should 
 be deprived of his property in any case against his consent. 1 
 
 The provision that the fee of land taken for railroad tracks 
 without the consent of the owners thereof should remain in 
 such owners, subject to the use for which it is taken was 
 also unique in the constitution of Illinois. Its purpose was 
 to prevent private property from being taken and retained 
 by railroad corporations and turned to other uses when no 
 longer needed for the purpose for which it was taken. 
 
 It appears, therefore, from the debates of the convention 
 that this whole question of the right of eminent domain and 
 its manner of exercise was considered a question of funda- 
 mental importance which had not been satisfactorily dealt 
 with in the past, and which required further action, but the 
 diversity of views as to the changes to be made resulted in 
 a great deal less radical alteration in the wording of this im- 
 portant section, than would have suited many members of 
 the convention. 
 
 Since the right of eminent domain exists in every govern- 
 ment, independently of constitutional grant, on the ground 
 of necessity, no legislative bargain in restraint of the com- 
 plete, continuous, and repeated exercise of this right is valid 
 or within the protection of the obligation of contracts in 
 either the federal or state constitutions. 2 
 
 Private property in this connection has been defined as 
 that dominion or indefinite right of user and disposition 
 which one may lawfully exercise over particular things or 
 subjects generally, to the exclusion of others. 3 Every 
 species of property which the public needs may require and 
 
 1 Debates of the Convention of 1869, p. 429. 
 
 2 Village of Hyde Park v. Cemetery Association, 119 Illinois, 141 (1886). 
 3 1. C. R. R. Co. v. Commissioners of Highways, 161 Illinois, 244 (1896). 
 
BILL OF RIGHTS 75 
 
 which government cannot lawfully appropriate under any 
 other right is subject to be seized and appropriated under 
 the right of eminent domain, in fact legal and equitable 
 rights of every description, except money or those rights 
 in action which can only be available when made to produce 
 money. 1 
 
 Under the present constitution, as seen, not only the taking 
 of private property but the damaging as well must be compen- 
 sated for. Prior to the constitution of 1870, recovery could 
 be had only for direct physical injury to property, as by 
 overflowing it, depositing materials upon it, etc., and so in- 
 terference with the ingress to or egress from property was 
 not required to be compensated for. But under the new 
 provision compensation is to be allowed in all cases, where 
 but for some legislative enactment, an action would lie at 
 common law, for tort to property. 2 
 
 The question of what constitutes a public use, has fre- 
 quently arisen in the courts, but no definite rule can be laid 
 down. The necessity or expediency of putting private 
 property to a certain use, is a question wholly for the legis- 
 lature, though the question whether such use is public or 
 private, will be reviewed by the courts. 3 The ordinary 
 functions of government are, of course, clearly public uses, 
 but even private undertakings may embody a public use, as 
 in the case of so-called public service or public utility 
 corporations. 4 
 
 The construction of drains, ditches, and levees by land- 
 owners for agricultural, sanitary, or mining purposes across 
 the lands of others, especially authorized by constitutional 
 
 1 Cooley, " Constitutional Limitations," pp. 756 ff. 
 
 2 Rigney v. Chicago, 102 Illinois, 64 (1882). 
 
 3 Dunham v. Village of Hyde Park, 75 Illinois, 371 (1874). 
 
 4 Chicago R. I. and Pac. R. R. v. Joliet, 79 Illinois, 25 (1875). 
 
76 THE CONSTITUTION OF ILLINOIS 
 
 provision, 1 is also subject to the conditions imposed on the 
 exercise of the right of eminent domain. Sewerage and 
 other works necessary for the abatement of public nuisances 
 come within the meaning of a public use 2 whether constructed 
 by public authorities or by private companies. 
 
 " Just compensation " means compensation to such amount 
 as is under all the circumstances a fair and full equivalent 
 for the thing taken, 3 or a reimbursement for real, as distin- 
 guished from merely speculative damages. 4 
 
 The requirement of a jury in this section embraces all the 
 provisions of section 5 and permits therefore a jury of six 
 to be authorized in trials before justices of the peace. 5 So 
 also the jury must be one in the selection of which the party 
 in interest has had an opportunity to participate. 6 
 
 In general, since the right of eminent domain, necessary 
 and undisputed though it be, is, nevertheless, a compulsion 
 on the individual to sell his property, involuntarily, it must 
 not be abused, and in its exercise the limitations prescribed 
 by the constitution should be strictly observed, and the 
 statutes passed in pursuance thereof should be strictly com- 
 plied with. 7 
 
 Section 14* Ex post facto laws, that is, retroactive crim- 
 inal laws were considered at common law also as cruel and 
 
 1 Constitution of Illinois, 1870, Art. iv, Sec. 31. 
 
 2 Jacksonville v. Lambert, 62 Illinois, 519 (1872). 
 
 3 Phillips v. Town of Scales Mound, 195 Illinois, 353 (1902). 
 
 4 R. R. Co. v. City of Pontiac, 169 Illinois, 155 (1897). 
 
 5 McManus v. McDonough, 107 Illinois, 95 (1883). 
 
 6 W. R. R. Co. v. Drainage District, 194 Illinois, 310 (1902). 
 
 7 Ayer v. City of Chicago, 149 Illinois, 262 (1894). 
 
 8 " No ex post facto law, or law impairing the obligation of contracts, or making 
 any irrevocable grant of special privileges or immunities, shall be passed." Con- 
 stitution of Illinois, 1870, Art. ii, Sec. 14. 
 
BILL OF RIGHTS 
 
 77 
 
 unjust. 1 The principle that all laws adversely affecting 
 private rights should be made to commence in futuro was 
 a fundamental principle of sound legislation in England 
 and has been a basic doctrine of our American constitutional 
 law from the very first. Retroactive laws, whether ex post 
 facto laws or laws impairing the obligation of contracts, that 
 is, whether criminal or civil, were ever contrary to the spirit 
 of our institutions under which life, liberty, and property are 
 most jealously safeguarded. The Virginia Bill of Rights, it 
 is true, did not embody a prohibition on such laws, but the 
 Northwest Ordinance had forbidden laws violating contract 
 rights and the great majority of states had by 1818 adopted 
 such provisions in their constitutions, besides the provisions 
 on this point in the United States constitution. 
 
 The federal constitution, it must be remembered, not only 
 forbids Congress to pass ex post facto laws, but expressly 
 forbids the states also to pass either ex post facto laws or 
 laws impairing the obligation of contracts. The insertion of 
 these provisions and the same was also true of the state 
 guarantees of due process after the adoption of amendment 
 XIV of the federal constitution into the first constitu- 
 tion of Illinois could, therefore, be of effect only in broad- 
 ening the protection which the interpretation of the federal 
 provision by the United States courts might supply. That 
 is, any state act which federal courts would consider con- 
 trary to either of these prohibitions as contained in the fed- 
 eral constitutions would be wholly bad, whether or not the 
 state courts might consider it as not violating the identical 
 provision in the state constitution. On the other hand, how- 
 ever, a state act sustained by the federal courts as not con- 
 trary to these prohibitions in the federal constitution might 
 still be invalidated by the state courts as violating their in- 
 terpretation of the same words in the state constitution. 
 
 1 Chase's Blackstone, p. 10. 
 
78 THE CONSTITUTION OF ILLINOIS 
 
 Both of these guarantees were, however, continued in the 
 later constitution of Illinois, and adopted in the constitution 
 of 1870 practically without discussion, being found at that 
 time also in about two-thirds of the other state constitutions. 
 
 The prohibition on making any irrevocable grant of special 
 privileges or immunities was new in the present constitution 
 of Illinois, but very little discussion of this provision took 
 place on the floor of the convention, notwithstanding that it 
 could be found in only two other constitutions of that time. 1 
 The indiscriminate granting of valuable franchises, in cor- 
 porate charters, made it necessary, under the ruling in the 
 Dartmouth College case 2 that such charters are contracts, to 
 protect the public against corrupt or indifferent legislative 
 bodies, by providing in the fundamental law of the state that 
 such grants could not be irrevocably made. 
 
 In the convention of 1869 it was moved, with a view to 
 remedying the mistakes of the past, as well as to providing 
 protection in the future, that any amendment made to exist- 
 ing charters of corporations should subject them to future 
 legislation, that is, withdraw them from the protection of 
 this provision, but this motion was not reported out by the 
 committee to which it was referred. 
 
 Ex post facto laws are defined in Illinois to be those by 
 which, after an act indifferent in itself has been committed, 
 the legislature declares it to have been a crime and makes it 
 punishable, 3 or those which change punishments to the pre- 
 judice of the defendant after the commission of the crime. 4 
 
 1 Kansas 1857, Ohio 1851. 
 
 2 Dartmouth College v. Woodward, 4 Wheat. 518 (1819). 
 
 3 Coler v. Madison Co., I Illinois, 154 (1826). 
 
 4 Johnson v. People, 173 Illinois, 131 (1898). The meaning and scope of the 
 federal prohibition on the passage of ex post facto laws which is directed to the 
 state legislature as well as to the National Congress was considered at length in 
 the case of Calder v. Bull, 3 Dall., 386 (1798). 
 
BILL OF RIGHTS 
 
 79 
 
 The entire deprivation of a remedy on a contract, is a vio- 
 lation of the protection hereby guaranteed, but the modifi- 
 cation or substitution of a remedy is not, 1 nor is the chang- 
 ing of the rules of evidence an impairment of a vested right. 2 
 Limitation laws are not bad even if affecting existing rights, 
 if a reasonable time is given for the assertion of the right be- 
 fore the bar takes effect. 3 The legislature may enact retro- 
 spective statutes to validate invalid contracts, or ratify acts 
 which it might have authorized in the first place, if no vested 
 rights will be infringed. 4 
 
 Charters of private corporations are contracts under the 
 Illinois constitution 5 as well as under the federal constitution, 
 and are subject to only a reasonable exercise of the police 
 power of the state, 6 that is, to the inherent inalienable right 
 to make all reasonable regulations in the interests of public 
 safety, welfare, health, and comfort. So even exemption 
 from taxation by charter is a contract binding on the state, 7 
 although the taxing power is a fundamental attribute of 
 government. 
 
 Sections 15 and 16* The necessity of having the military 
 in subordination to the civil power, and the evils of any other 
 relation between the two arms of government, had been 
 
 1 Newkirk v. Chapron, 17 Illinois, 344 (1856). 
 
 2 Roby v. Chicago, 64 Illinois, 447 (1872). 
 3 ~Bradley v. Tightcap, 201 Illinois, 511 (1903). 
 
 * Scammon v. Commercial Co., 6 Illinois Appeals, 551 (1880). 
 
 5 Bruffet v. Great Western R. R. Co., 25 Illinois, 349 (1861). 
 
 6 Ruggles v. People, 91 Illinois, 256 (1878). 
 
 7 Illinois C. R. R. v. Goodwin, 94 Illinois, 262 (1880). 
 
 8 " The military shall be in strict subordination to the civil power." 
 " No soldier shall in time of peace be quartered in any house without the 
 consent of the owner; nor in time of war, except in the manner prescribed by 
 law." Constitution of Illinois, 1870, Art. ii, Sees. 15 and 16. 
 
80 THE CONSTITUTION OF ILLINOIS 
 
 early felt in England, and a formal request for remedying 
 the abuses of the military power was embodied in the Peti- 
 tion of Right of 1628 to Charles I. in which it was de- 
 manded that the soldiers and sailors quartered on the in- 
 habitants in time of peace be removed, and that the 
 proceedings by martial law instead of by civil law be sup- 
 pressed. 1 Again in the Bill of Rights of 1689 Parliament 
 expressly forbade the raising or keeping of a standing army 
 within the kingdom in time of peace without its consent. 2 
 
 In the period prior to the American Revolution, moreover, 
 the colonists had suffered their own experience of the evils 
 of having standing armies quartered upon them, and of inter- 
 ference with the regular course of justice, and in the Declara- 
 tion of Independence among the oppressions there described, 
 were the keeping of standing armies in times of peace among 
 the colonies without the consent of their legislatures, the 
 quartering of large bodies of armed troops among them, and 
 generally the rendering of the military independent of and 
 superior to the civil power. 
 
 The Virginia Bill of Rights, therefore, embodied a provi- 
 sion forbidding standing armies in time of peace, and sub- 
 ordinating the military power to the civil power, in all cases, 
 as did also most of the other revolutionary constitutions. 
 Notwithstanding the fact that these provisions were very 
 common at the time when the first Illinois constitution was 
 framed, no mention of them is contained in that document. 
 But in the constitution of 1848, following the precedent of 
 all but three of the twenty-eight constitutions then in force, 
 the section subordinating the military to the civil power was 
 inserted, and the present prohibition against quartering 
 soldiers, found also in almost as many of the other constitu- 
 tions of the time, was added. 
 
 1 Stubbs, " Select Charters," p. 516. Petition of Right, ch. x. 
 
 2 Ibid., p. 524. Bill of Rights, clause 6. 
 
BILL OF RIGHTS 8 1 
 
 Section 7/. 1 Though the right of the people in a free 
 government, peaceably to assemble and to petition the gov- 
 ernment for redress of grievances, is one which results from 
 the very nature and structure of its institutions, it was 
 nevertheless subjected to repeated attacks by the crown 
 in England. The right of petition, though now regarded 
 as a simple, primitive, and natural right, was, even as late 
 as the reign of James II., sought to be denied in the famous 
 trial of the seven bishops for having attempted to exercise 
 this right, and it was therein finally vindicated by their ac- 
 quittal. 2 The English Bill of Rights of 1689, therefore, after 
 reciting the illegal prosecution of these petitioners to the 
 crown, declares that it is the right of the subject to petition 
 the king, and that all commitments and prosecutions for such 
 petitioning are illegal. 3 
 
 This right was generally expressly protected in the early 
 constitutions, though Story regards it as unnecessary to be 
 expressly provided for, 4 and the earlier constitutions of 
 Illinois guaranteed it in virtually the same terms as are now 
 found in this section of the present Illinois constitution. 
 
 Section i$. 5 The English Bill of Rights had declared that 
 the election of members of parliament ought to be free, 6 and 
 this principle ol free and equal elections was again expressly 
 declared in the first American Bill of Rights about a century 
 
 1 " The people have the right to assemble in a peaceable manner to consult for 
 the common good, to make known their opinions to their representatives, and to 
 apply for redress of grievances." Constitution of Illinois, 1870, Art. ii, Sec. 17. 
 
 z Cooley, " Constitutional Limitations," p. 497. 
 
 3 Stubbs, " Select Charters," p. 623. 
 
 4 Story on the Constitution, sec. 1894. 
 
 5 " All elections shall be free and equal." Constitution of Illinois, 1870, Art. 
 ii, Sec. 1 8. 
 
 6 Stubbs, " Select Charters," p. 525. 
 
82 THE CONSTITUTION OF ILLINOIS 
 
 later. The early constitutions in this country pretty gener- 
 ally followed the example of Virginia in this regard, and 
 when in 1818 Illinois expressly guaranteed the freedom and 
 equality of elections, she adopted the practice prevailing in 
 more than half of the existing constitutions. 
 
 The provision as found in the early Illinois constitution 
 was retained verbatim both in the constitution of 1848 and 
 in the present constitution of 1870. Just what practical 
 effect would be given to this section by the Illinois courts 
 does not appear, but its general purpose undoubtedly is to 
 keep every election free of all influences and surroundings 
 which might bear improperly upon it or might impel the 
 electors to cast their votes otherwise than as their judgments 
 would dictate. 1 
 
 Section /p. 2 This general declaration of the protection 
 which should be found in the law is practically an epitome 
 of the theory of the common law, and was formulated in 
 substance as early as the thirteenth century in the Great 
 Charter of English Liberties. 3 Chapter 40 of Magna Charta 
 of King John declares " we will sell to no man, we will deny 
 no man, or defer right or justice," asserting a principle 
 which has remained fundamental in the English law from 
 that time to the present, and which had been guaranteed in 
 over half the state constitutions in force when Illinois was 
 admitted to the Union. 
 
 The statement of this principle in the first Illinois consti- 
 
 1 Cooley, " Constitutional Limitations," p. 922. 
 
 2 " Every person ought to find a certain remedy in the laws for all injuries and 
 wrongs which he may receive in his person, property, or reputation; he ought to 
 obtain by law, right and justice freely and without being obliged to purchase it, 
 completely and without denial, promptly and without delay." Constitution of 
 Illinois, 1870, Art. ii, Sec. 19. 
 
 3 Stubbs, " Select Charters," p. 301. 
 
BILL OF RIGHTS 83 
 
 tution was adopted without substantial change in both of the 
 later constitutions of Illinois, and stands in our present con- 
 stitution little different from its first annunciation seven 
 centuries ago. 
 
 Under this provision of the constitution every man has the 
 right to call upon the courts to protect him in his person, 
 property, and reputation, and that, too, without reference to 
 whether other persons are also suffering from the same 
 cause. 1 
 
 The right of an elector to have the person who has been 
 lawfully elected established in his office is not a right the 
 violation of which is an injury to his person, property, or 
 reputation within this provision of the constitution, and can- 
 not therefore be enforced through the courts in absence of a 
 statute conferring such jurisdiction on them. 2 
 
 But a statute requiring a plaintiff to show that he has paid 
 all taxes, due and assessed, on a lot before he can question 
 the validity of a tax title is repugnant to this provision of the 
 constitution, in that it compels him to buy justice. 3 
 
 Section 2O. 4 As a fitting conclusion to the foregoing enum- 
 eration of the fundamental principles of government is added 
 this declaration of the necessity of a frequent recurrence to 
 these principles for preserving the blessings of liberty. Similar 
 declarations were found in six of the early state constitu- 
 tions and in the first constitution of Illinois from which the 
 provision was continued without change in the subsequent 
 constitutions of the state. 
 
 1 Wylie v. Elwood, 34 Illinois Appeals 244 (1889). 
 
 2 Douglas v. Hutchinson, 183 Illinois, 327 (1899). 
 
 3 Reed v. Tyler, 56 Illinois, 288 (1870). 
 
 4 " A frequent recurrence to the fundamental principles of civil government is 
 absolutely necessary to preserve the blessings of liberty." Constitution of Illinois 
 1870, Art. ii, Sec. 20. 
 
84 THE CONSTITUTION OF ILLINOIS 
 
 Such, then, are the principles, in their origin, develop- 
 ment, and application, which now stand as part of the funda- 
 mental law of the commonwealth of Illinois ; the resultants of a 
 large number of factors of varying influence and importance. 
 The manifest qualities of the common law, its no less ap- 
 parent defects, the doctrines of political theorists, the neces- 
 sities of political exigencies, ancient constitutional principles 
 and modern political developments, all played some part 
 in formulating the body of declarations contained in the 
 present bill of rights ; an enumeration of individual rights, 
 on the one hand, comprehensive enough to provide an ade- 
 quate guarantee of personal liberty, without, on the other 
 hand, entering into undue philosophical speculation or un- 
 wise legislative detail. 
 
ARTICLE III. 
 
 THE DISTRIBUTION OF POWERS. 1 
 
 The doctrine of a separation of governmental powers so 
 emphatically laid down in this article of the constitution of 
 Illinois was one that had come to be an integral part of 
 American political theory in the earliest period of our con- 
 stitution making. 2 The doctrine in a somewhat different 
 form may be found as far back as the political writings of 
 the Greeks and Romans, though never substantially exempli- 
 fied in those governments. For many centuries thereafter, 
 no clear distinction was observed between the powers we 
 now classify as legislative, executive and judicial, and the 
 middle of the seventeenth century in England saw the first 
 recognition of this doctrine as a political theory. 
 
 John Locke in his political writings of that time strongly 
 advocated the separation of legislative and executive pow- 
 ers, including as a third class, the federative powers which 
 consisted in substance of the diplomatic powers. Like some 
 modern publicists he did not regard the judicial power as 
 a separate independent power. 3 In France, in the next 
 
 1 " The powers of the government of this state are divided into three distinct 
 departments the Legislative, Executive and Judicial; and no person or collec- 
 tion of persons being one of these departments shall exercise any power properly 
 belonging to either of the others, except as hireinafter expressly directed or per- 
 mitted." Constitution of Illinois, 1870, Art. Hi. 
 
 2 For a more extended historical consideration of this doctrine see Bondy 
 " Separation of Governmental Powers," Columbia University Studies, vol. v, pp. 
 144 ff., and also a comprehensive collection of references in Garner, " Introduc- 
 tion to Political Science," ch. xiii. 
 
 8 Cf. Goodnow, " Politics and Administration," ch. i. 
 
 85 
 
86 THE CONSTITUTION OF ILLINOIS 
 
 century, Locke's views were developed and elaborated by 
 Montesquieu, who in his " Esprit des Lois!' established the 
 separation of governmental powers as a fundamental prin- 
 ciple of political .science, making a third independent class 
 of powers of the judicial functions. Blackstone expounded 
 similar views in England, but neither of these writers main- 
 tained that any absolute and complete separation of these 
 powers into three distinct departments of government was 
 either desirable or possible. 
 
 In America the framers of our early constitutions accepted 
 the doctrine of Montesquieu and recognized a certain separa- 
 tion of the powers of government as essential to liberty. 
 Prior even to the adoption of the federal constitutions six of 
 the twelve states with written constitutions at that time had 
 thought this doctrine of sufficient importance to insert a 
 special article or clause, distributing the powers of govern- 
 ment, in more or less unqualified terms among the three de- 
 partments. 1 When in 1818 the first constitution of Illinois 
 embodied this principle in a separate article, eleven of the 
 eighteen state constitutions then in force had already em- 
 phasized its importance in a similar manner. 2 
 
 The article on the distribution of powers as embodied in 
 the constitution of 1 8 1 8 was adopted without material changes 
 in both of the subsequent constitutions of Illinois. Hence 
 in examining the cases involving a discussion of this article, 
 one may regard the decisions under the earlier constitutions 
 as equally applicable to the determination of the legal effect 
 of the article in the present constitution ; for, in the language 
 
 1 Georgia 1777, Maryland 1776, Massachusetts 1780, New Hampshire 1776* 
 North Carolina 1776, Virginia 1776. Thorpe," American Charters, Constitutions 
 and Organic Laws." 
 
 2 Georgia 1798, Indiana 1816, Kentucky 1799, Louisiana 1812, Maryland 1776, 
 Massachusetts 1780, Mississippi 1817, New Hampshire 1792, North Carolina 
 1776, Vermont 1786, Virginia 1776. Thorpe, supra. 
 
THE DISTRIBUTION OF POWERS g; 
 
 of the Illinois Supreme Court: " It must be presumed that 
 when the present constitution was adopted it was with full 
 knowledge of the interpretation that had been placed by the 
 court upon the language incorporated therein from the prior 
 constitution." J 
 
 The earliest judicial consideration in Illinois of the mean- 
 ing of the distributing article in the constitution seems to 
 have been in the early case of Field vs. People? in 1839, in 
 which the court declared that this article, although express- 
 ing a fundamental principle of vital importance, was to be 
 understood in a limited and qualified sense only, and not to 
 mean that there shall be absolutely no connection or depen- 
 dence between the departments, " for in every state there is 
 a blending and admixture of different powers, so far as to 
 give each department a constitutional control over the others, 
 considered by the wisest statesmen as essential in a free 
 government as is separation." The court goes further than 
 this general qualification and, adopting the words of Madi- 
 son, 3 declares of the article : " its true meaning in theory 
 and practice is that the whole power of two or more of these 
 departments shall not be lodged in the same hands, whether 
 of one or many." This interpretation of the article, so broad 
 as to be practically destructive of all significance it might 
 have had in the minds of the framers of the constitution, was 
 never followed ; for very soon after the decision of the case 
 in which this peculiar doctrine was announced the courts 
 undertook in a number of instances to declare acts of one 
 department unconstitutional as being in violation of the dis- 
 tributing article, though assuming to exercise some only of 
 the powers thought to belong properly to another. 
 
 But, though this early extreme view was never followed in 
 
 1 Sterling Gas Co. v. Higby, 134 Illinois, 557 (1890). 
 
 2 3 Illinois, 79 (1839). 3 Federalist, no. xlvii. 
 
88 THE CONSTITUTION OF ILLINOIS 
 
 later cases, yet from the first the Illinois courts have de- 
 clared that the language of the article in question is not to 
 be taken exactly as it stands, but must rather be regarded 
 as implying a qualification, similar, perhaps to the one ex- 
 pressly inserted in the constitution of New Hampshire in 
 which the powers of government are to be kept " as separate 
 from and independent of each other as the nature of a free 
 government will admit, or as is consistent with that chain of 
 connection that binds the whole fabric of the constitution in 
 one indissoluble bond of union and amity." 
 
 Before examining the cases in which one of the depart- 
 ments of government was claimed to have attempted an ex- 
 ercise of powers properly belonging to some other, we shall 
 refer briefly to the question of the independence of each de- 
 partment from the control of either of the others, which 
 control in so far as it is not expressly sanctioned by the con- 
 stitution would seem to involve a departure from the article 
 on the distribution of powers. In the first place, under our 
 American theory of the function of the courts in passing upon 
 the constitutionality of the acts of the other departments, a 
 theory firmly established in most of our state governments as 
 well as in the federal government even before the first con- 
 stitution of Illinois was framed, 1 the judiciary exercises, of 
 course, a most effective form of cpntrol over the legislative 
 and executive departments. In Illinois this power of the 
 courts seems not to have been questioned, as it was in Ohio 
 and Kentucky even after the date of the adoption of the first 
 Illinois Constitution. 2 It must be accepted, therefore, that 
 this form of control was not regarded as being within the 
 spirit of the prohibition expressed in the distributing article, 
 wherefore a discussion of the manner in which, or of the ex- 
 
 1 Bondy, " Separation of Governmental Powers," Columbia University Studies, 
 vol. v, p. 184. 
 
 * Ibid., pp. 187, 188. 
 
THE DISTRIBUTION OF POWERS 89 
 
 tent to which, this power is exercised does not properly fall 
 within the purview of this examination. 
 
 But judicial control may also be exercised directly through 
 the process of the courts, particularly by means of the special 
 writs of mandamus, injunction, quo warranto, etc., as applied 
 to officers of the government, and here the courts have given 
 some effect to the doctrine of the independence of the several 
 departments. The case of People vs. Bissell 1 established 
 the rule that a mandamus will not issue to compel the 
 performance of a duty by the chief executive under any 
 circumstances. In this case it was sought to mandamus the 
 governor to issue certain bonds which it was claimed he was 
 legally bound to issue* The court refused the petition for a 
 mandamus without considering the other questions involved 
 in the case, on the ground that the executive department 
 was not subject to such control by the judiciary. " Neither 
 of the three great departments," says the court, " into which 
 our government is by the constitution divided is subordinate 
 to or may exercise any control over another except as pro- 
 vided in the constitution. We have no power to compel 
 either of the other departments of the government to per- 
 form any duty which the constitution or the law may impose 
 upon them, no matter how palpable such duty may be, any 
 more_ than either of those departments may compel us to 
 perform our duties." 
 
 The rule thus laid down in Illinois, though not the one 
 followed in some other jurisdictions, 2 is unquestionably the 
 most expedient in view of the practical impossibility of en- 
 forcing obedience to such a writ if issued ; and the prin- 
 ciple of the Bissell case was reaffirmed in two later Illinois 
 
 1 19 Illinois, 229 (1857). 
 
 2 State v. Governor, 5 Ohio St., 528 (1856); Cotton v. Governor, 7 Jones (N. 
 C.), 545 (1860); Magruder v. Governor, 25 Md., 173 (1866), et al. 
 
90 THE CONSTITUTION OF ILLINOIS 
 
 decisions. In People vs. Yates? the court refused an appli- 
 cation for mandamus to compel the Governor to deposit 
 with the Secretary of State a bill passed by the General 
 Assembly and placed in his hands for consideration and 
 which had not been returned as required by the constitution ; 
 and in the later case of People vs. Cullorn? a mandamus 
 was refused which sought to compel the Governor to call an 
 election for county judge as required by the constitution. 
 But this independence of the executive from direct control 
 by the courts does not extend to the protection of private 
 rights attempted to be conferred by him contrary to law. 
 So where the Governor is authorized to sell state realty to 
 the highest responsible bidder, if he should attempt to sell 
 it to one of several admittedly responsible bidders, other 
 than the highest, the courts would review his action in pas- 
 sing on the rights of individual adverse claimants to the 
 land. 3 Nor is it any interference with the powers of the 
 executive to enjoin the making of vouchers by state house 
 commissioners for illegal expenditures even though such 
 vouchers required the approval of the Governor before any 
 money could be paid out under them. 4 
 
 The independence of the legislature from judicial interfer- 
 ence has been recognized in a number of cases in which the 
 courts have refused to review the discretion vested in the 
 legislature in the performance of many of its functions. 
 Even when the constitution has declared definitely how the 
 legislature shall act in certain matters, as for instance in the 
 matter of senatorial apportionment, the courts will not go 
 back of a bona fide attempt to comply with the constitutional 
 
 *40 Illinois, 126 (1863). 
 
 2 100 Illinois, 472 (1881). 
 
 3 Webster i>. French, u Illinois, 254 (1849). 
 
 4 Littler v. Jayne, 124 Illinois, 123 (] 
 
THE DISTRIBUTION OF POWERS, gi 
 
 requirement, even though a substantial variation therefrom 
 is offered to be shown. 1 In the case of Whiteside County 
 vs. Burchell? it was claimed that the legislature was bound 
 by a trust charged by Congress on lands given to the state, 
 to drain and reclaim them, and that it was proper for the 
 court to enforce that trust. But the court said that even if 
 the lands could have been regarded as charged with such a 
 trust, it was a trust of municipal and not judicial concern, 
 over which the power of the state is plenary and exclusive. 
 
 Certain other functions, designated by the courts as politi- 
 cal, have been held to be without the scope of judicial in- 
 terference or control in the absence of statutory authority. 
 So the court refused to relieve against fraud, accident or 
 mistake in elections by mandamus or injunction, even though 
 no other method of contesting the election was provided. 3 
 Nor will a court enjoin the holding of an election, for that 
 too is a political and not a judicial function. 4 In Dickey vs. 
 Reed, 3 the court designated as such political questions those 
 controversies where the decision of the court " must deter- 
 mine which of two persons shall hold an office or which of 
 two forms of local government shall control the people of a 
 municipality," and felt that to allow the courts to decide 
 such questions " would largely give control of the political 
 power of the state to the courts, a department not designed 
 either directly or indirectly to exercise or control that 
 power." 
 
 The independence of the judiciary as regards interference 
 by the legislative branch of the government was asserted in 
 
 1 People v. Thompson, 155 Illinois, 451 (1895); People v. Rose, 203 Illinois, 
 46 (1903). 
 
 * 3 1 Illinois, 68 (1863). 
 
 3 Moore v. Hoisington, 31 Illinois 243 (1863). 
 
 4 People v. Galesburg, 48 Illinois, 486 (1868). 
 
 5 78 Illinois, 261 (1875). 
 
92 THE CONSTITUTION OF ILLINOIS 
 
 the case of 0' Neil vs. People, 1 in a dictum to the effect that 
 the power of the courts to punish contempt summarily is 
 not only incident to courts of record but is not in fact sus- 
 ceptible of abridgment by legislative enactment. A recent 
 assertion of freedom of the judiciary from executive control 
 occurred in 1909 when the Supreme Court of Illinois, after 
 invalidating three primary laws passed by the General 
 Assembly, refused to comply with the Governor's request 
 for a draft of a primary law which would not be open to the 
 numerous constitutional defects that had caused the in- 
 validating of the former laws. 
 
 Coming now to the consideration of the cases involving 
 what was claimed to be the improper exercise by one de- 
 partment of powers belonging to another, we shall consider 
 in the first place acts of the legislature which have been 
 judicially discussed from this point of view. The general 
 attitude of the court towards this question, as expressed in 
 the case of Rhinehart vs. Schuyler? was still rather more 
 liberal than the actual subsequent decisions seemed to adopt. 
 The court in that case quotes with approval a declaration 
 that " the position that a legislature cannot constitutionally 
 perform a judicial act is supported by no authority nor has 
 it any reason in public policy or convenience," though there 
 had already been decided some cases in which the power of 
 the legislature to pass acts involving judicial determinations 
 had been denied, and a number of later cases were deter- 
 mined in the same way. The court continues in the case 
 above, " The constitutional division of powers is only a de- 
 claration of the general system or theory of government and 
 was never intended to fix exact and impassable limits to each 
 department," which is undoubtedly true, as is also the 
 
 1 113 Illinois, Appeals, 195 (1903). 
 
 2 7 Illinois, 473 (1845). 
 
THE DISTRIBUTION OF POWERS 93 
 
 further declaration that " there are things necessary to 
 be done in the administration of the government of a char- 
 acter so mixed and blended, partaking of the elements of all 
 three divisions of power that we could not know to which to 
 assign it." Nevertheless, we find the court unhesitatingly 
 declaring a number of legislative acts invalid on the very 
 ground that the legislature has encroached upon the domain 
 reserved by the constitutional division of powers to the 
 judiciary alone. 
 
 So the following acts were regarded as involving an un- 
 constitutional exercise of judicial power by the legislative 
 department : 
 
 (a) The ascertainment of indebtedness between two par- 
 ties, and the direction of the application of property of the 
 one to the payment of the other was held in the case of 
 Lane vs. Dormant to be a judicial act that could not be per- 
 formed by the legislature, and such legislative determination 
 of the existence of debts has been held invalid in several 
 subsequent cases. 2 
 
 This is, of course, a very clear case of a power that prop- 
 erly belongs to the courts alone if the principle of the sepa- 
 ration of powers is to be given any practical application. Of 
 the same nature is the determination whether a widow is 
 entitled to dower in a certain piece of land, and so a legis- 
 lative act attempting to make such a determination was held 
 invalid in the case of Edwards vs. Pope? So also an act de- 
 claring the title to certain land, deeded by a grantor on con- 
 dition, to have reverted by a breach of condition was held 
 to be an unconstitutional exercise of judicial power. 4 On 
 
 1 4 Illinois, 238 (1841). 
 
 2 Davenport v. Young, 16 Illinois, 548 (1855); Rozier v. Fagan, 46 Illinois, 
 404 (1868). 
 
 3 4 Illinois, 465 (1842). 
 
 4 Board of Education v. Bakewell, 122 Illinois, 339 (1887). 
 
94 THE CONSTITUTION OF ILLINOIS 
 
 the same ground it was held in the case of Bruffet vs. Great 
 Western Ry.? that a legislative act declaring a corporate 
 charter to have been forfeited was an invalid attempt to ex- 
 ercise judicial powers. 
 
 (b) An attempt by the legislature to validate a tax levy 
 which has been declared invalid by the Supreme Court was 
 declared unconstitutional on the ground that the adjudication 
 by the court was final and not subject to legislative revision. 2 
 
 (c) A legislative declaration of what facts shall be taken 
 as conclusive evidence of others would be an invasion of the 
 powers of the judiciary according to the view of the court 
 in People vs. Rose? though it is competent for the legislature 
 to make reasonable rules as to what facts shall constitute 
 prima facie evidence. 4 
 
 (d ) The case of In re Day 5 decided that the determina- 
 tion of qualifications for admission to the Bar was a judicial 
 function not subject to legislative enactment; except nega- 
 tively for the protection of the state by excluding those per- 
 sons through whom injurious consequences are likely to re- 
 sult to the inhabitants of the state. So it was held in that 
 case that a statute providing that holders of a two-year law- 
 school diploma should be admitted to the Bar without ex- 
 amination was unconstitutional. This case is somewhat 
 peculiar, in that it undertakes to classify as strictly judicial 
 a power which is neither expressly declared to be such by 
 the constitution, nor which as a matter of historical practice 
 had been previously so regarded. Furthermore, the pre- 
 scribing of qualifications for the practice of all other profes- 
 sions is admittedly a proper legislative undertaking, and if 
 
 1 25 Illinois, 310 (1861). 
 
 1 Chicago & Eastern Illinois R. R. v. People, 219 Illinois, 408 (1906). 
 
 3 207 Illinois, 352 (1904). 
 
 *Burbank v. People, 90 Illinois, 554 (1878). 
 
 6 i8i Illinois, 73 (1899). 
 
THE DISTRIBUTION OF POWERS 95 
 
 this departure from the ordinary rule is to be justified at all, 
 it would seem that it could be only upon the ground of the 
 close connection between the judiciary and the attorneys of 
 a state, which latter are, indeed, frequently referred to as 
 officers of the court. The opinion in the case of In Re Day 
 does not, however, undertake to do more than merely lay 
 down this rather remarkable holding. 
 
 That historical practice and express constitutional pro- 
 visions are not the only basis for permitting the exercise of 
 a power by one or the other departments of government, 
 appears also from the opinion in the case of Dodge vs. Cole? 
 in which the power of a court of equity to order the sale of 
 the realty of an insane person was upheld as a proper judicial 
 power, though not sanctioned in either of the above two 
 ways, there being, in the opinion of the court, no violation 
 of the principle of separation of powers merely because the 
 court assumed a function which in this particular aspect had 
 not been previously exercised. 
 
 Among legislative acts objected to as an improper assump- 
 tion of judicial powers but sustained by the courts as being 
 within legislative competency are the following: 
 
 An act authorizing a guardian to sell the realty of his 
 ward under the direction of a court of probate is not objec- 
 tionable as being a judicial determination, 2 for here the legis- 
 lature does not attempt to adjudicate adverse claims but 
 merely acts in the interest of a ward by permitting his 
 guardian to act subject to approval by the court of probate. 
 An act authorizing the levying of a special tax by bridge 
 commissioners for defraying the debts incurred in the erec- 
 tion and repair of a bridge, was held not to be objectionable 
 as a legislative determination of indebtedness ; for, while as- 
 
 1 97 Illinois, 338 (1881). 
 
 1 Mason v. Wait, 5 Illinois, 127 (1842). 
 
9 6 
 
 THE CONSTITUTION OF ILLINOIS 
 
 suming there may be debts, the act did not undertake the 
 determine their nature or amount nor to whom or from 
 whom due. 1 
 
 Classification of lands for taxation and fixing the amount 
 of taxes to be assessed on each class was held not to be an 
 unconstitutional exercise of judicial powers, 2 the legislature 
 not having designated into which class particular pieces of 
 property should be put. The powers of the legislature 
 over the public funds of a municipal corporation are not 
 limited by the article on the distribution of powers as is its 
 control over private funds. So the legislature may order a 
 county to pay over to another county, formed out of the 
 first, a part of a fund granted originally by the legislature to 
 the former. 3 So also the legislature may stipulate how the 
 surplus of taxes collected by a county and city shall be dis- 
 tributed between them, for the power conferred on a county 
 to raise revenue is a political power, and its application when 
 collected must necessarily be within the control of the legis- 
 lature for political purposes. 4 
 
 Retroactive acts affecting existing agreements are not 
 necessarily invalid assumptions of judicial power. So an 
 act laying down a general rule to govern all contracts made 
 during a certain prior period, merely taking away an exist- 
 ing penalty for usury and directing that interest shall be 
 allowed to the extent to which it might have been lawfully 
 reserved, is not an improper assumption of judicial power, 5 
 nor is an act validating past loans by foreign corporations 
 objectionable, 6 nor an act validating contracts made with 
 
 1 Shaw v. Dennis, 10 Illinois, 405 (1849). 
 
 7 Rhinebart v. Schuyler, 7 Illinois, 473 (1845). 
 
 8 County of Richland v. County of Lawrence, 12 Illinois, I (1850). 
 
 4 People v. Power, 25 Illinois, 169 (1861). 
 
 5 Parmelee v. Lawrence, 48 Illinois, 331 (1868;. 
 
 6 U. S. Mortgage Co. v. Gross, 93 Illinois, 483 (1879). 
 
THE DISTRIBUTION OF POWERS gj 
 
 corporations, which contracts were unenforceable because 
 acknowledged before officers who were also stockholders in 
 the corporation. 1 Though it was insisted that this last act 
 was not a law but a legislative direction to the courts to 
 decide and adjudge in a particular manner, the court held 
 it was not the exercise of judicial power, for it did not pur- 
 port to settle suits or controversies, but merely gave effect to 
 acknowledgments in a manner under legislative control. 
 The ground for all three of these cases is to be found in the 
 language of Judge Cooley, quoted in the case of U. S. Mort- 
 gage Co. vs. Gross 2 "When such (retroactive) acts go no 
 farther than to bind a party by a contract he has attempted 
 to enter into, but which was invalid by reason of some per- 
 sonal inability on his part to make it or through neglect of 
 some legal formality or in consequence of some ingredient 
 in the contract forbidden by law, the question they suggest 
 is one of policy and not of constitutional power." The gen- 
 eral rule as stated in the same case is, that in absence of 
 constitutional prohibition the legislature has the power, when 
 it interferes with no vested right, to enact retroactive statutes 
 to validate invalid contracts or to ratify or confirm any act 
 it might lawfully have authorized in the first place. 
 
 An act restricting the defenses admissible to an applica- 
 tion for judgment of sale upon assessments or matured in- 
 stalments, by excluding those which might have been inter- 
 posed in either the original proceeding for making such 
 assessments or in the application for confirmation thereof, 
 was held not to be a curtailment of the powers of inquiry of 
 the court by the legislature. 3 If proper judicial inquiry is 
 provided for, the legislature may adopt rules of this nature 
 
 1 Steger v. Traveling Men's Association, 208 Illinois, 236 (1904). 
 
 '93 Illinois, 483 (1879). 
 
 5 Downey v % People, 205 Illinois, 230 (1903). 
 
g8 THE CONSTITUTION OF ILLINOIS 
 
 intended to bring litigation concerning the validity of official 
 acts to a speedy close. 
 
 It appears, therefore, from the foregoing cases that the 
 Illinois courts have regarded the article on the distribution 
 of powers as prohibiting; the legislative determination 
 among adverse claimants of property rights, whether choses 
 in action or in possession, individual rights or corporate 
 charters ; validating a tax levy already declared invalid by 
 the Supreme Court ; making certain facts conclusive evidence 
 of others ; and determining who shall be admitted to the 
 Bar. On the other hand, remedial acts empowering indi- 
 viduals to do what they desire with their own property but 
 had not power to do; acts authorizing a sale by a guardian 
 of his ward's realty, under the direction and sanction of a 
 court of probate; disposition of public funds of municipal 
 corporations for governmental purposes; classification of 
 property and assessment of taxes by classes ; retroactive 
 acts carrying out the intention of the parties to invalid con- 
 tracts; the reasonable designation of what shall be prima 
 facie evidence, and the reasonable restriction of defenses in 
 cases where proper hearing is otherwise provided ; are not 
 regarded as judicial functions denied the legislature by the 
 requirement of separation of powers. 
 
 It should be noted that some of the cases considered above 
 are now within the express constitutional prohibition against 
 special legislation, x and would therefore no longer depend 
 upon an application of the doctrine of separation of powers. 
 
 As regards the exercise by the legi*lature of powers that 
 might be considered as belonging properly to the executive 
 branch of the government, the early case of Field vs. People, 
 sitpra, held that the power to remove the Secretary of State 
 was not, under the constitution of 1818, to be implied as be- 
 
 1 Constitution of Illinois, 1870, Art. iv, Sec. 22. 
 
THE DISTRIBUTION OF POWERS 
 
 99 
 
 longing to the executive, but rested in the legislature. The 
 creation of offices, the delegation and regulation of powers and 
 duties of officers, and prescribing the period for which they 
 shall be exercised are legislative functions, according to the 
 view of the court, and rest with the legislature in absence of 
 constitutional restraint upon their exercise. The executive 
 pardoning power was held in the case of Meul vs. People'' 
 not to be infringed by an act providing that one-half of the 
 fines imposed and collected under the Fish and Game Act 
 should be paid to the informer, as the power given the Gov- 
 ernor to grant reprieves, commutations and pardon does not 
 confer or include the power to remit the interest of others in 
 the fines and penalties which have become fixed and vested. 
 
 Finally, the question of what are and what are not legis- 
 lative powers has arisen also, and much more frequently, in- 
 deed, in cases involving the alleged delegation of such pow- 
 ers to subordinate bodies not belonging wholly to either one 
 of the two other departments of government. But as these 
 cases raise no question of the separation of powers as be- 
 tween the three departments, their consideration falls prop- 
 erly under an examination of the judicial decisions bearing 
 on Art. IV., I of the present constitution by which the 
 legislative power is vested in the General Assembly. 
 
 The validity of powers exercised by the executive branch 
 of the government seems never to have been denied in Illi- 
 nois on the ground of their involving a violation of the 
 article on the distribution of powers, the early case of Field 
 vs. People, supra, having been decided rather on the ground 
 that as the Governor had not been directly authorized by 
 the constitution to remove the Secretary of State, such 
 power would not be implied, than on the ground that the 
 power in its nature could not be exercised by the executive 
 
 1 198 Illinois, 258 (1902). 
 
I0 o THE CONSTITUTION OF ILLINOIS 
 
 branch of the government. 1 An Illinois case is, indeed, some- 
 times cited as laying down the rule that the mayor of a city 
 being an executive officer of the state, could not, under the 
 constitutional separation of powers be invested with the 
 judicial powers of a justice of the peace. But an examina- 
 tion of the case so cited, 2 shows that it does not stand for 
 the proposition that the distributing article applies to mayors 
 of cities which would mark an important and exceptional 
 departure from the generally prevalent view that the consti- 
 tutional requirement of separation of powers refers only to 
 the departments of the central government but that the case 
 really turns on another provision of the constitution of 1848, 
 relative to the terms of justices of the peace, which made it 
 impossible for one-year mayors to act in that capacity. This 
 decision was followed a few years later in the case of Beese- 
 man vs. City of Peoria? in which the facts were similar. As 
 these cases turn, therefore, on a special constitutional pro- 
 vision they cannot be taken to show an extension of the 
 doctrine of separation of powers to local governmental 
 agencies, which view would be neither consistent with the 
 purpose or intent of the constitutional prohibition nor recon- 
 cilable with the actual established practice in this state, or 
 in any other, with reference to the powers vested in local 
 governing bodies. 4 
 
 The extent of the constitutional restriction upon powers 
 exercisable by the judiciary has been considered in a num- 
 
 1 People v. Butler Str. Foundry Co., 201 Illinois, 236 (1903), held that requir- 
 ing corporations to file an anti-trust affidavit before the Secretary of State, under 
 penalty for failure to do so, did not invest the latter with judicial powers in viola- 
 tion of Article III. 
 
 2 State v. Maynard, 14 Illinois, 419 (1853). 
 
 3 1 6 Illinois, 484 (1855). 
 
 4 Bondy, supra, ch. xxii. Under the commission form of city government now 
 increasingly introduced in this country especially in the West, all legislative and 
 executive powers are united in the same authorities. 
 
THE DISTRIBUTION OF POWERS IO i 
 
 ber of cases involving, for the most part, the validity of leg- 
 islative imposition of duties upon the courts. Powers which 
 have been considered as legislative in their nature to the 
 extent of not being exercisable by the courts are the fol- 
 lowing : 
 
 (a) The changing of the boundaries of municipal cor- 
 porations was held to be a legislative function not exercis- 
 able by the courts, in City of Galesburg vs. Hawkinson? 
 because the boundaries if fixed by the courts would still be 
 alterable at the will of the legislature, and the proceeding 
 therefore lacked the essence of a judicial determination, viz., 
 that it should, so long as unreversed and not vacated, be 
 conclusive as to the matters in controversy. But though the 
 creation of municipal corporations and the ultimate fixing of 
 their boundaries could not be entrusted to the courts, a 
 board consisting of a county judge and two circuit judges 
 may be created to designate the territory to be embraced in 
 a proposed municipal corporation prior to submitting the 
 question of incorporation to a vote. a 
 
 (#) The power to compel a public service corporation to 
 charge certain specified rates for a commodity rests with the 
 legislature and not with the courts. In the case of People's 
 Gas Light and Coke Co. vs. Hale* the court refused to 
 order the defendant company to charge the rates claimed by 
 the plaintiff to be the maximum reasonable rates, on the 
 ground that, while inquiring whether rates that have been 
 charged and collected are reasonable or not is a judicial act, 
 prescribing rates which shall be collected in the future is a 
 legislative act. 
 
 (c) It is not competent for a court to declare that a pri- 
 vate corporation has, by virtue of its great extent, become a 
 
 75 Illinois, 152 (1874). 
 
 2 People v. Nelson, 133 Illinois, 565 (1890). 
 
 8 94 Illinois Appeals 406 (1900). 
 
I0 2 THE CONSTITUTION OF ILLINOIS 
 
 public service corporation. As was said in the case of the 
 American Live Stock Commission Co. vs. Chicago Live Stock 
 Exchange? though there may exist facts sufficient to war- 
 rant the legislature in declaring a private corporation to 
 have become affected with a public use and to require legal 
 control and supervision, that power does not reside in the 
 courts. 
 
 The constitutionality of vesting the power of appointing 
 administrative officers in the courts, though questioned in a 
 number of cases in Illinois, has always been upheld as not 
 conflicting with the requirements of separation of powers. So 
 an act giving to the circuit court the power to appoint park 
 commissioners was upheld in two cases, 2 in one of which, 
 People vs. Morgan 3 it was said that the power to appoint is 
 by no means an executive function unless made so by the 
 constitution or by statute, and the legislature may designate 
 the courts as the appointing body. Similar acts authorizing 
 county courts to appoint drainage commissioners were up- 
 held in various Illinois cases on like grounds, 4 and the same 
 was held with reference to an act vesting the appointment 
 of a board of election commissioners in the county court, 5 
 the court resting its decision on the ground that the power 
 to appoint officers of this kind was not characterized by the 
 constitution as either a legislative, judicial or executive 
 power, nor was anything therein expressed which either di- 
 rectly or impliedly prohibited the legislature from author- 
 
 1 143 Illinois, 210 (1892). 
 
 2 People v. Williams, 51 Illinois, 63 (1869); People v. Morgan, 90 Illinois, 
 558(1878). 
 
 3 90 Illinois, 558 (1878). 
 
 4 Moore v. People, ic6 Illinois, 376 (1883); Blake v. People, 109 Illinois, 504 
 (1884); Kilgour v. Drainage Commissioners, in Illinois, 342 (1884); Huston 
 v. Clark, 112 Illinois, 344 (1884). 
 
 6 People v. Hoffman, 116 Illinois, 587 (1886). 
 
THE DISTRIBUTION OF POWERS 
 
 103 
 
 izing the county court to appoint such commissioners. In 
 the later case of Sherman vs. People* this doctrine was re- 
 affirmed, the court adding that this jurisdiction could be 
 conferred also under the general jurisdiction clause granting 
 to county courts " such other jurisdiction as may be con- 
 ferred by law." 2 The court in that case sustained an act 
 making the election judges and clerks officers of the court 
 and punishable summarily by contempt proceedings for mis- 
 behavior in office. In the same light as these powers of ap- 
 pointment are regarded the powers conferred on judges to 
 take acknowledgments and to solemnize marriages. 3 
 
 Finally, in the recent case of Aurora vs. Sch'Jeberlein,* the 
 court held that no appeal could lie from an order of a board 
 of fire commissioners, removing an officer under their con- 
 trol, to the circuit court, for the board acts executively not 
 judicially in dismissing an officer and hence its decisions do 
 not present a proper case for appeal to the circuit court. 
 The court further says that the legislature could not confer 
 such judicial power on this board as to make its decisions 
 subject to appeal, as a judicial proceeding, to the court, 
 though this dictum is contrary to the general rule of law 
 elsewhere and its soundness may be doubted. 
 
 As in the case of legislative powers, so with judicial powers 
 also, the consideration of their nature has arisen most fre- 
 quently in cases involving the exercise of judicial functions 
 by non-judicial bodies not strictly members of the two other 
 departments of the central government. And here again, 
 therefore, the discussion of the constitutionality of such exer- 
 cise falls properly under the examination of the provision 
 vesting the judicial power in the named organs of the judi- 
 
 1 210 Illinois, 552 (1904). 
 
 2 Constitution of Illinois, 1870, Art. vi, Sec. 18. 
 8 People v. Nelson, 133 Illinois, 565 (1890). 
 
 4 230 Illinois, 496 (1907). 
 
104 
 
 THE CONSTITUTION OF ILLINOIS 
 
 ciary department, and has no necessary bearing on the mean- 
 ing of the distributing article, for powers that are consid- 
 ered judicial for one purpose are not necessarily so considered 
 for all purposes. 
 
 Summing up the cases on the powers conceded or denied 
 the judiciary under the distributing article, it appears that 
 courts may not (a) determine boundaries of municipal 
 corporations, (&) declare affirmatively what rates may be 
 charged in the future by public service corporations, (c) de- 
 clare private corporations to have because of their growth 
 become affected with a public interest, or (</) hear appeals 
 from determinations of administrative boards. On the other 
 hand, it is no violation of the article on the separation of 
 powers for courts to make preliminary designations, when 
 acting as a board, of the territory of proposed municipal 
 corporations, or to appoint certain non-judicial officers such 
 as park, drainage or election commissioners. 
 
 In conclusion it may be said that although the early view 
 as announced in the case of Field vs. People -, supra, by 
 which the article on the distribution of powers would have 
 been practically shorn of all effect, was not adhered to in 
 later decisions, yet to-day it is true that article iii of the 
 constitution has a significance the more remarkably small 
 because of the emphatic language employed therein. Not 
 only will the courts not insist on any strict separation of 
 powers, leaning rather towards a very liberal construction of 
 the article, but even of the above cases denying the validity 
 of the exercise of certain powers by one or the other of the 
 departments, the greater part could rest as well on other 
 constitutional grounds. 1 Indeed, as regards the importance 
 of a special article like article iii in the Illinois constitution, 
 
 1 So the legislative determination. of private rights, even when not covered by 
 the restriction on special legislation, would undoubtedly be obnoxious to the 
 guarantee of due process as now construed by the courts. 
 
THE DISTRIBUTION OF POWERS IO 5 
 
 it seems that all of these cases would probably have been de- 
 cided in the same way even in the absence of any such 
 article, under the general idea of the separation of powers as 
 embodied in the three clauses vesting the three powers of 
 government in the respective departments thereof, for the 
 federal decisions on the distribution of powers have gone as 
 far as those in Illinois, and that too, although there is no 
 express pro'vision in the federal constitution corresponding 
 to art. iii of the constitution of Illinois. 
 
VITA 
 
 HERMAN GERLACH JAMES, born January 2, 1887, Phila- 
 delphia, Pa. Attended Northwestern University, 1903- 
 1904; University of Illinois, 1904-1906, graduating with 
 the degree of A.B., June, 1906; elected to Phi Beta Kappa; 
 Harvard University Law School, 1906-1907; University of 
 Chicago Law School, 1907-1909, graduating with the de- 
 gree J.D., cum laiide, June, 1909; admitted to the Illinois 
 Bar, June, 1909; University of Illinois, 1909-1910, gradu- 
 ating with the degree of M.A., June, 1910; Columbia Uni- 
 versity Fellow in Administrative Law, 19101911. 
 
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 icP 9 1963