Upon the evening of January 9, 1879, the following address was read before the Illinois State Bar Association, at Springfield, Illinois, and it is given here as perhaps a sufficiently comprehensive sketch of the life, character and services of Judge Breese, in the absence of a memoir, prepared especially for this volume, which, it was hoped until recently, would have been furnished.
Illinois was admitted into the Union on the 3d day of December, A.D. 1818.
The settled part of the State, according to Governor Ford, extended a little north of Edwardsville and Alton; south along the Mississippi to the mouth of the Ohio; east in the direction of Carlyle to the Wabash; and down the Wabash and the Ohio to the mouth of the last-named river; there being a very large unsettled wilderness tract of country within these boundaries, lying between the Kaskaskia river and the Wabash; and between the Kaskaskia and the Ohio, of three days' journey across it.
The population was about forty thousand,a scattered through fifteen counties, of which the most populous were p4 Madison, Gallatin, and St. Clair. The capital was the village of Kaskaskia, then the largest in the State, and inhabited for the most part by the descendants of those who occupied it when it was the seat of French Empire in this portion of the great valley. The State House was a large rough building of uncut limestone, with gables and roof of unpainted boards and shingles, and dormer windows, which had been the headquarters of the French military commandant prior to 1763.
The revenue due December 1, 1818, was reported by the Auditor at $7,510.44, part of which was in the hands of delinquent collectors, while for another part, the Sheriffs of St. Clair and Gallatin counties had refused to receive the warrants; and Governor Bond advised a temporary loan, which, to the amount of $25,000, was authorized by Act of the Legislature, February 19, 1819.
There was practically no commerce, and all foreign products had been nearly or quite up to this time brought via New Orleans in keel-boats, towed by ropes and pushed by poles, or wagoned over the Alleghenies and floated in flat-boats down the Ohio.
Slavery existed to some extent, notwithstanding the ordinance of 1787, and was apparently a settled institution in half the other States.
The pursuits of the people during territorial times had been mainly agricultural, varied by hunting and trapping. Maize was the staple production, but wheat, rye, oats, cotton, tobacco and hemp were also grown, and the vine cultivated; and the attention of the inhabitants, which p5 had been chiefly devoted to raising a sufficiency for their own consumption, was being directed to the development of the vast agricultural resources of the new State.
On the 24th day of December, 1818, a youth of eighteen years of age, who had come from central New York, by the way of the then village of Buffalo, and thence by boat to Sandusky, stage coach to Marietta, and boat to Shawneetown, arrived at Kaskaskia.
He came upon the invitation of Elias Kent Kane, who had been his school companion, and at one time an inmate of his family, and having graduated at Yale College in 1814, had settled at Kaskaskia in 1815, had been prominent in the convention which framed the State Constitution, and was now the Secretary of State.
He lived to see the forty thousand multiply into millions, and the infant commonwealth then struggling into existence, become a mighty empire in the van and pressing to the leadership in the glorious sisterhood of States.
He lived to see the old stone house give place to thisb magnificent structure; the few thousands of revenue, partly in arrears, expand into as many millions, collected without difficulty; the necessity of borrowing wholly obviated; and the indebtedness incurred in the progress of the State placed in the process of ultimate extinction and already rendered insignificant.
He lived to see vast inland seas whitened with the sails of innumerable vessels laden with the products of this most fertile soil, and the country covered with a web of iron tracks, along which mighty trains of cars, propelled p6 by steam, conveyed in that form these products to a market.
He lived to see the twelve thousand three hundred and ninety-five persons engaged in agriculture, the two hundred and thirty-three in commerce, and the one thousand and seven in manufactures, as shown by the census of 1820, become three hundred and seventy‑six thousand four hundred and forty‑one in agriculture, eighty thousand four hundred and twenty‑two in commerce, and one hundred and thirty-three thousand two hundred and twenty-one in manufactures, etc., as stated in that of 1870, and to witness the increase of the eight succeeding years.
He lived to see a single city of Illinois, then unknown, and described as late as 1823 in the Gazetteer of that day, a copy of which is in his library, "presented by the author," as "a village of Pike county, situated on Lake Michigan, at the mouth of Chicago creek," containing "twelve or fifteen houses, and about sixty or seventy inhabitants," the metropolis of the West, with nearly half a million population.
He lived to succeed his old friend Kane in the United States Senate, not quite eight years after the latter's death, which happened December 12, 1835, in the tenth year of his incumbency of that exalted position.
He lived to see seventeen stars add their light to the national constellation, the shackles stricken from the limbs of every slave, and Illinois, whose very boundaries had been fixed upon with the view of making her the strong connecting link between the Eastern, Western and Southern p7 States, give to the country the administrator of its civil government, and the leader of its embattled hosts, during the war, upon whose issue hung the preservation of the Union.
When he entered Kaskaskia, Marshall, and Story, and Brockholst Livingston were members of the Supreme Court of the United States, Kent was Chancellor, Gibson was entering upon his judicial career, Shaw and Taney were at the Bar, Eldon was on the woolsack, Ellenborough had but just been succeeded by Abbot.
He lived to lay deep the foundations of the jurisprudence of his adopted State, to build thereon with the cunning hand of the master, and to know that his name was written with the names of Marshall, and Story, and Kent, and Shaw, and Gibson, and Taney, and Eldon, and Tenterden, high on the roll of those whose fame the world will not "willingly let die."
In 1756, Sidney Breese, a Welsh gentleman, after some years of service in the Royal Army, settled in New York, became one of the merchant princes of the day, and died June 9, 1767, leaving one son, Samuel, who lived in New Jersey, and whose sons, Arthur and Sidney, were born in that State.
Arthur adopted the law as a profession, and in 1793 settled at Whitestown, in what was then Herkimer, but is now Oneida county, New York; Whitestown being but a few miles from Utica, and at present forming practically a suburb of that city.
He married Catharine, daughter of Henry Livingston p8 of Poughkeepsie, and Sidney Breese, of Illinois, was the second son of this marriage, born July 15, 1800.
Catharine was the great-granddaughter of Gilbert Livingston, whose father, Robert, a descendant of the Lords of Livingston of Scotland, came to America in 1654, intermarried with Alida Van Rensselaer, daughter of Philip Schuyler, in 1679, and through the sons of this used to became the ancestor of that family so prominently connected with the States of New York and New Jersey, and whose members have shed such lustre upon the jurisprudence, the diplomacy, and the statesmanship of this country.
Young Breese entered Hamilton College when fourteen years of age, and was transferred to Union College in 1816, and there graduated in 1818, standing third in a class of sixty-four.
Among his classmates were Alonzo Potter and George W. Doane, who as Bishops of Pennsylvania and New Jersey, and men of eminent talents, learning and piety, acquired celebrity; A. S. Porter, whom Mr. Breese subsequently met at Washington, where both were members of the United States Senate, and James A. Bayard, who came to the Senate in 1851 from Delaware, having been preceded by his father, and being now succeeded by a son, who represents with uncommon brilliancy the third generation of a family in which statesmanship appears to be hereditary.
Mr. Breese had commenced reading law before he left New York, and continued his studies in the office of Mr. Kane; at the same time acting as Assistant Secretary p9 of State; and it has been stated that "such was his position in the office, and such the frequent necessary intercourse of the counties with the seat of government, that the young clerk personally knew every prominent man in the State."
This assertion might probably always have been made of him, for, notwithstanding the increase in the number of the distinguished citizens of Illinois, accompanying her growth in population, wealth and importance, Judge Breese appears to have had substantially a personal acquaintance with them all.
He was admitted to the Bar, being not yet of age, in 1820, and commenced practice in Jackson county, where he regarded his first appearance before a jury as such a failure that he almost resolved to abandon the profession. It may be assumed that this failure was not attributable to any want of knowledge of the law, or of the facts of the particular case, but perhaps to a lack of facility in adapting himself to the needs of a jury trial at that time, or to a diffidence which has been ascribed to him as a constitutional peculiarity.
It was in December of this year that he removed the archives of the Secretary of State to Vandalia, to which the seat of government had been transferred, in a small road-wagon, having to cut a way through the woods at several points. He opened the Secretary's office in a little room in the second story of the then new State House, a plain two‑story frame building of rude architecture, set upon a rough stone foundation, and during the entire p10 session of the Legislature, commencing on the first Monday, of the following November, kept it in that apartment.
In the appropriation bill for the year 1821 is to be found the item, "To the Secretary of State the sum of twenty-five dollars, for the sum necessarily expended by him in the removal of the books, papers, etc., belonging to his office, from Kaskaskia to Vandalia;" which presents rather a striking contrast with what we may conjecture it would cost to make such a transfer at the present time.
In 1821, he resumed the practice of his profession at Kaskaskia, and it was in this year that he was offered, unsolicited, and accepted the office of Postmaster. In September, 1822, he was appointed Circuit Attorney for the Third Judicial Circuit, in place of Thomas Reynolds, who had become Chief Justice, and resigned the Postmastership, but continued for some time to discharge its duties, the letter lists running along into 1823, as published in the Kaskaskia Advocate, being signed "Sidney Breese, acting P. M."
The newspapers of that day fully justify the original cause of their existence, and the conveyance of intelligence on current events, and, so far as I have had opportunity to examine them, it is evident that the prominence of Mr. Breese was such that complete files would of themselves furnish a sufficient sketch of his career. Thus we are informed by advertisement, under date "Kaskaskia, Jan. 4, 1823," that "Elias K. Kane and Sidney Breese practice law in copartnership," and in 1824, that this p11 partnership was dissolved agreeably to its terms," Mr. Kane in the same year being elected to the General Assembly, and by that body transferred to the United States Senate, dying in his second term. Again, in July, 1823, among accounts of celebrations of the anniversary of Independence, is to be found a record of the proceedings "at the inn of Dr. E. Paine in this village," presided over by General Phillip Fouke, at which was given the following toast: "By Sidney Breese, Esq. 'Ourselves — We paddle our own canoe, chew our own tobacco, and smoke our own segars,' " which, I presume, was literally true. In the same summer, the Illinois Intelligencer notices the trial at a special term of court held at Vandalia, July 29, of an indictment for murder by six distinct wounds by a Spanish knife, in which the prosecution was conducted by "Sidney Breese, Esq., Cir. Att'y," and "Edward Bates, Esq., of St. Louis, and S. McRoberts, Esq.," represented the defendant, who, after an "investigation" of three days, was acquitted in three minutes.
In the Advocate of February 24, 1824, a meeting in favor of calling a convention to amend the State Constitution is noticed, at which "Sidney Breese, Esq., made some pertinent remarks on the important subject before the people," and an elaborate address was adopted, on motion of Mr. Kane.
The introduction of slavery is understood to have been involved in the adoption of the call for a convention, but it is quite clear that it was favored for other reasons, many of which are presented in this address, and that the p12 question of slavery was discussed largely upon grounds of expediency; nor does the attitude of leading men in relation to this subject appear to have affected their public standing, as, notwithstanding the convention was voted down, its supporters continued to be placed and retained in office.
In the Advocate of Thursday, September 11, 1823, appears this announcement:
"Married — On Thursday evening last, by Raphael Widen, Esq., Sidney Breese, Esq., to Miss Eliza, daughter of William Morrison, Esq., all of this place."
Mr. Morrison was a wealthy pioneer merchant of Kaskaskia, the descendants of whom and whose family have been honorably conspicuous in the affairs of this State, winning distinction for Illinois and for themselves upon the battle-field, in the halls of State legislation, and in Congress, where one of them to‑day maintains high and deserved position with the foremost.1
Fourteen children were the fruit of this marriage, of whom six are yet living, and she who came to him in all her youth and beauty, to be the partner of his joys and sorrows for nearly fifty-five years, yet survives to miss "the touch of a vanished hand, and the sound of a voice that is still," but to feel a tender pride in the tributes so universally paid to the greatness of the departed, and sustained by the everlasting arms, which never fail to lift those of a sincere faith into the region of a certain hope.
On the 30th of April, 1825, the "nation's guest," the p13 Marquis De LaFayette visited Kaskaskia, and at the banquet on this occasion at "Colonel Sweet's tavern," Mr. Breese offered the following sentiment: "Our illustrious guest — In the many and trying situations in which he has been placed, we see in him the same consistent friend of liberty and man."
A ball at the house of William Morrison, Esq., closed these festivities, at which the future Chief Justice, whose bride was the daughter of the host, undoubtedly exhibited his proficiency in the mazes of the dance, although after he came to the Great Seal, I think he did not allow himself any such indulgence.
These references in the newspapers, which I will not prolong, seem to bring our friend most vividly before us, in the vigor of his youth, actively engaged in every thing that was going forward, and evidently standing high in the estimation of the community in which he lived, and of the State at large.
In 1826, Mr. Breese was displaced as Circuit Attorney, having been appointed by Governor Bond, and served through the term of Governor Coles, notwithstanding he had not favored the election of the latter; and was shortly thereafter appointed United States District Attorney by President Adams.
"This office he held until after the inauguration of General Jackson, in 1829, who removed him through the false representations and slanders of his opponents," as Judge Breese says in a fragment of a brief autobiographical sketch I have seen, and which thus proceeds: "From p14 that date up to 1832, he was devoted to his profession; when, in that year, excited by a proclamation of the Governor for volunteers, he volunteered as a private in Captain Jacob Fearmain's company of mounted volunteers, to pursue and capture 'Black Hawk,' who with his ruthless band was murdering and scalping the settlers on Rock river, in Illinois. He rose from the ranks to be Lieutenant-Colonel of the Third Regiment, Third Brigade of Mounted Volunteers," outranking as such, it is said, Zachary Taylor, Albert Sidney Johnstonº and Robert Anderson.
Prior to this, however, in 1831, he had become the author and publisher of the "Reports of the Decisions of the Supreme Court of the State of Illinois," from 1818 to 1831. He was not simply the pioneer reporter, but the pioneer publisher, for this is the first book published in the State, and he personally aided the printer in setting the type. This work was inscribed to Elias Kent Kane, "against whose integrity," runs the dedication, "as a man and a lawyer, no imputation was ever made," and the motive of the publication is declared in the preface to have been "a desire to discharge, in some degree, that duty which one of the sages of the law has said, 'every man owed to his profession.' "
Resuming his profession with diligence, Mr. Breese, in January and February, 1833, was associated with Richard M. Young and Thomas Ford, in the defense of Judge Smith, in his trial before the Senate upon articles of impeachment, the pleas to which he exclusively prepared. p15 The prosecution was conducted by John T. Stuart, James Semple, Murray McConnel, John Dougherty and Benjamin Mills, and it is apparent that with such ability in the managers on the part of the House, the powers of the defendant's counsel were fully tested.
At the close of 1824, the Legislature created Circuit Courts, divided the State into five judicial circuits, and elected judges therefor, including Richard M. Young. Two years after, the Circuit Court system was repealed, the four Justices of the Supreme Court assigned to Circuit duty in four districts, and Judge Young retained on Circuit in the military tract.
January 7, 1835, an act was passed repealing all laws requiring the Supreme Court Judges to hold Circuit Courts, and five Circuit Judges were elected by the General Assembly, and the Sixth Circuit created. The five new judges were Stephen T. Logan, Sidney Breese, Henry Eddy, Justin Harlan, and Thomas Ford, while Judge Young continued in office. Of the six, four have fallen asleep. Judge Logan,2 whose celebrity as a lawyer and public man, has with the modern generation, obscured the recollections of his judicial career, preserves, after a distinguished and useful life, an unabated interest in affairs, looking out with his old colleague, Judge Harlan, also in the enjoyment of excellent health, from the "loopholes of retreat" upon the shifting scenery of the world's progress. Judge Harlan leaving the Circuit bench under p16 the reorganization of February, 1841, was returned to it by the people in 1848, when he had the honor of defeating Chief Justice Wilson, who, after having been a member of the Supreme Court from 1819, discharging the duties of the office to great acceptance, found himself, under the Constitution of 1848, in a judicial division politically opposed to him by a large majority, and had been therefore placed by his friends in nomination for the Circuit Court. Re‑elected in 1854, Judge Harlan retired in 1860, after eighteen years of judicial service.
Judge Ford's Circuit embraced Peoria and all north; and Judge Breese's the counties of Madison, St. Clair, Monroe, Randolph, Washington, Clinton, Bond, Fayette, Montgomery and Shelby. They exchanged for the first round, and Judge Breese held the term at (among other places including Chicago) Ottawa, in the spring of 1835. His description, in conversation in after years, of the lovely valley in which the village lay, as it burst upon his view when he rode over the bluffs which command it, the exuberance of the foliage, the brilliancy of the flowers, the beauty of the rivers lacing the meadow with their silver bands, and all the picturesque charms of the landscape, was most vivid. It was captivating ground to him, for he had, from his arrival in the State, taken a deep interest in her ancient history, and it was hallowed by the memories of Marquette and LaSalle and Joliet, and like heroic men, who surrendered every thing that is believed to render life dear, and life itself, in the pursuit of adventurous enterprise, or to carry the mission of the Cross, p17 the glad tidings of great joy, to the remotest confines of these untraveled lands.
In November, 1835, Judge Breese removed from Kaskaskia to Cahokia, where he took up his residence upon what was known as the Mound Farm, and which overlooked the village and the surrounding country, and there the bar were elegantly entertained at the terms of court in Clinton county, by the Judge and his accomplished wife.
But although he left Kaskaskia, he ever retained a deep affection for the place, and in an address in 1842, thus alludes to it: "It was there I passed some of the happiest moments of my life, and in her withered fortunes and waning glory, she wove a spell about my heart, which, it is no shames to say, separation has not broken; and coming age but adds to the potency of the enchantment —
'Yet does the memory of my boyhood stay,
A twilight of the brightness passed away.' "c
He removed into town in 1845, and there resided until his death, and a part of the Mound Farm having been appropriated to the village cemetery, his remains were returned to mingle with their connatural dust, in full view of and quite near the old home, around which clustered so many precious memories.d
As a Circuit Judge, Judge Breese is thus described by one3 who knew him well at that time, and who, after years of eminent public service, as Secretary of State, Member of the Legislature, Justice of the Supreme Court, p18 and United States Senator, finds in the active practice of the law, in its higher walks, delightful occupation and renewed distinction: "In those times, when court-houses were always crowded, and sometimes by persons disposed to be boisterous, Judge Breese possessed the happy faculty of commanding respect, and compelling the observance of order, with the least effort of any Judge I ever saw presiding on the Circuit, under like circumstances. It used to be said of him, that he looked the very Judge. He presided with dignity, was always courteous to members of the Bar, was quick to comprehend an argument, and see the points of a case, was prompt in his decisions, and ready to give a reason therefor. Taken all in all, he was, in my opinion, the ablest Circuit Judge before whom it was ever my fortune to practice."
At the April term, 1839, of the Fayette Circuit Court, there came before Judge Breese upon quo warranto the question of the power of the Governor to remove the incumbent of the office of Secretary of State, and to appoint another, and he held, in one of the most elaborate opinions ever delivered in this State, that the power existed.
This was widely published in the Democratic papers, and is an able argument upon the proposition that the power to remove an executive officer, whose appointment by the Governor was provided for, but the tenure of whose office was not fixed by the Constitution, belonged to the Governor as a substantive power pertaining to the exercise of p19 the executive function, and that the advice and consent of the Senate to the appointment was an exception to be strictly limited to the language creating it, and in no respect impaired the executive power of removal.
The judgment of the Circuit Court was reversed by the Supreme Court (2 Scam. 70), Wilson, C. J., and Lockwood, J., concurring, Smith, J., dissenting, and Brown, J., not voting; but Judge Breese's views seem to have been considered so important that the Chief Justice pays him the honor of devoting a large part of his opinion to the attempt to refute them.
The question was after all one of fundamental political principle. It was in effect the same question submitted to the people in the controversy between the Senate and General Jackson in 1834, in reference to the removal of Mr. Duane, and was then settled in favor of the executive power, by a reversal, by election, of the Senatorial majority, and the passage of the expunging resolution.
And in this case, the judgment of the people being involved, a reorganization of the Judiciary resulted in a numerical change in favor of the political party whose position upon the question was alleged to have been antagonized.
In April, 1840, Judge Breese delivered a speech before the people of Montgomery county, where he had been holding a term of the Circuit Court, in defense of the measures of the National Administration, in favor of an independent treasury and against a National bank, having refrained from doing so until the business of the court was p20 completed, although he expresses the opinion that there is no reason for the exclusion of the possessor of a judicial office from a free expression of his political views at all fit times and on all proper occasions, and refers to the fact that Judge Thompson, of the United States Supreme Court, had been the unsuccessful candidate for Governor of New York against Martin Van Buren; to the election of Marcus Morton to the gubernatorial chair of Massachusetts, while Judge of the Supreme Court, and to the canvass for that office, of Illinois, by Judges Phillips and Brown, in 1822. He declares with an engaging candor, which would strike terror into a modern audience, that if his physical powers hold out, he shall consume several hours in a complete answer to all those who had spoken on the opposite side of the important topics in issue, and he holds himself bound to answer any proper question that may be put, or give explanation on any point on which he may, in the rapidity of utterance, seem to be obscure. He then proceeds to a sketch of the origin of parties, defining, with great precision, their fundamental differences in principle, and giving a vivid presentation of the views of Thomas Jefferson as the representative of the one, and those of Alexander Hamilton as the representative of the other. He insists that the latter, although a gallant soldier and a man of talents, was so much wedded to the British system, that, although defeated in the Convention, he still thought it practicable to make ours conform to it, and, as Secretary of the Treasury, sought to connect the Government p21 with the paper system, as in England; and, in this connection, he discusses General Hamilton's course as a member of the Cabinet of Washington. Having thus led up to the great question of the United States Bank, he denounces the act of incorporation as unconstitutional, and thus pays his respects to Chief Justice Marshall: "Although an upright Judge, and highly gifted, he was of the Federal school of politics, and was a latitudinarian in his construction of the Constitution. For a democratic people, his opinions on constitutional law, in cases of this kind, are worth little, and he was an unsafe guide to which to commit our political ship. In political questions I make up my own opinions. I yield to none unless I believe them right, however hallowed by time, or sanctioned by the authority of great names. If erroneous opinions have been propagated by the Cabinet or the Bench, our reason is left free to combat them; and while free, we should exercise it. Unlike the decrees of the Vatican, the sovereign people can reverse them."
He gives lengthy extracts from Jefferson, Clay, Webster, and others, and insists such a bank is unnecessary for any purpose, not necessary to regulate exchanges, calculated to subsidize and corrupt, not restraining State issues, etc., and says: "There is such an identity of interests between all banking institutions — there is such a close affinity, not to say 'consanguinity,' between them — they all shuffle, cut, and deal so much in the same way, and play so adroitly into each other's hands, that a National bank could have no patriotic motive operating with her, p22 to restrain the issues of other banks. They usually contract and expand at the same time, like the flow and ebb of the tides of the ocean, and like them, too, spreading dismay and ruin in each heave and recession of the billow."
He advocates the independent treasury, and answers seriatim the objections thereto, considers the amount of gold and silver in Europe and America, and denounces the operations of a paper currency, as producing periodically, first, an apparent prosperity and then real adversity, citing statistics from 1817 to 1839 to sustain his position, and then exclaims: "Here we need not be embarrassed; with a soil the richest in the world, whose products can supply the exhausted granaries of Europe and Asia, tilled by industrious freemen, and the people left free to their own voluntary choice of pursuits, aided by wise legislation and their own prudence and economy, they cannot fail of being independent. Industry and economy will effect more good for you than all the banks that ever did or ever will exist. You need them not; your drafts are drawn on the real dispenser of blessings, and they are answered in the sunshine and the shower."
Replying to the charge of extravagance preferred against Mr. Van Buren's administration, he closes with this admonition: "I hope what I have said may sink deep into your minds, and excite reflection and inquiry. Your 'sober second thought' may prompt you, if at any time you have been induced to stray aside from the true path by the siren song of those who chant so sweetly to the ear p23 alone, to retrace your steps, and to 'heed not the charmers, charm they never so wisely.' "
This speech makes forty-three closely printed pages, and I have dwelt upon it at this length, because of the insight it affords into his modes of thought and expression at that time, the thoroughness of his political knowledge, and his laborious industry in the collection and collocation of facts.
By an act of the General Assembly of February 10, 1841, all the Circuit Judges were legislated out of office, and five additional Justices of the Supreme Court provided for, to be elected by the Legislature on joint ballot; and Thomas Ford, Walter B. Scales, Samuel H. Treat, Stephen A. Douglas and Sidney Breese were elected — Judge Breese "without his knowledge" — and on the 22d day of February, 1841, as we find recorded in the second volume of Scammon, page 559, the "new Judges took their seats upon the Bench," except Mr. Justice Douglas, who did not until the last day of the term.
Whether this reorganization of the Judiciary is to be attributed to the excitement growing out of the decision in The People v. Field, or the pendency of the alien case of Spraggins v. Houghton, 2 Scam. 377, or, as is most probable, partially to both, it seems clearly to have been a political movement, which accorded with the fashion of the time, and the objectionable aspects of which were soon forgotten in view of the abilities and character of the new appointees, one of whom, after having for thirteen years contributed to the reputation of the Supreme Court for p24 integrity, ability and wisdom, still exhibits, upon the United States District Bench, all the attributes which distinguish the jurist.4
Judge Breese, having been elected to the United States Senate, December 18, 1842, for the full term commencing March 4, 1843, resigned his seat December 19, 1842, and was succeeded by Mr. Justice Semple. Out of one hundred and thirty‑one opinions reported between February 22, 1841, and the commencement of Judge Semple's incumbency, Mr. Justice Breese delivered thirty-four.
Prior to this, on the evening of December 12, Judge Breese delivered, in the State Senate Chamber, an able and scholarly address upon the early history of Illinois, commencing with the discovery and first settlement of the country. In this field he anticipated the researches of many who have since won in it great distinction, and it is difficult to conjecture why the address has not long since been published.5
Mr. Breese at once demonstrated, in this new sphere of duty, his uncommon aptitude for public affairs. The Senate of the United States when he entered it, and during his entire term, was, for the distinguished ability of its members, surpassed by no similar body in the world. And there where Webster and Calhoun, Benton, Buchanan and Wright, Evans and Woodbury, Walker and McDuffie, and others, the giants of those days, contended for the mastery, Senator Breese was himself, "not least but honored of them all." During his six years in the Senate, p25 the Mexican war was prosecuted, the annexation of Texas accomplished, the Oregon boundary settled, Florida and Iowa, the oldest and the newest territory, admitted into the Union, the Pacific railroad brought forward as a tangible project, and the Illinois Central grant substantially agreed upon. Wisconsin was also admitted, bringing in as one of its Senators, General Henry Dodge, who had preceded his son, A. C. Dodge, of Iowa, as Territorial Delegate in the House, but reversing the order of nature, came to the higher inheritance after the latter.
During this period, Fremont was earning his title of the Pathfinder, and Mr. Breese's kinsman, S. F. Breese Morse,e put in operation the electric telegraph; the two‑thirds rule proved fatal to Mr. Van Buren; Polk was elected over Clay, and Taylor over Cass, the Mexican war affording another illustration, in more than one instance, of engineers being hoist by their own petard; the Secretary of State and of the Navy were killed by the explosion on the Princeton, and the venerable and venerated John Quincy Adams, whose appointee Judge Breese had been twenty years before, saw the "last of earth" beneath the roof of the Capitol.f
The first public duty which Senator Breese appears to have been called upon to discharge was the presentation of resolutions of respect to the memory of his colleague, Samuel McRoberts, who died March 22, 1843, at Cincinnati, on his route home from Washington, at the early age of forty-four years. In his accompanying remarks, which p26 are full of feeling, he speaks of the deceased as Illinois' "most cherished son," "a native of her own soil," and "the only one, with a single exception, who has ever had a seat here from the territory north-west of the river Ohio." He alludes to the fact that the father of the departed Senator was "one of the earliest pioneers, who penetrated before the peace of 1783 to that then solitary and untrodden wild," and lived to see his son occupy a seat in the Senate Chamber. Giving a rapid sketch of Senator McRoberts' career, Mr. Breese then said: "But it is as an intrepid statesman, who never swerved from what he deemed correct principles, that he is most familiarly known to his constituents and to the country at large. As such, he exhibited at all times the high attributes of a great character, and was never found wanting when it became necessary to prove how much principle is superior to policy."
Language most justly, also, applicable to him who uttered it.
It is an interesting fact that Mr. John Wentworth, the then youngest member of Congress, and who, in the full vigor of his mental and physical faculties, yet lifts his voice, as of yore, for "liberty and economy," addressed the House upon the occasion of the proceedings in reference to Judge McRoberts' death, in what he stated was his first speech on the floor of any legislative body whatever.
Judge Semple succeeded Senator McRoberts by appointment and election, and was in turn succeeded by Judge Douglas.
p27 It was in the month of November, 1833, that Stephen A. Douglas, then twenty years of age, first trod the soil of Illinois. On the 4th day of March, 1847, after having filled in the intermediate period the offices of States Attorney, Member of the State Legislature, Register of the Land Office at Springfield, Secretary of State, Judge of the Supreme Court, and Member of Congress, he became the colleague of Judge Breese, in the United States Senate.
He was a statesman of the first order, and as a public speaker lived and died without a rival. Upon the hustings or in the Senate Chamber, a more powerful and magnetic orator, a more prompt and dexterous debater, this country has never seen. His intellect was comprehensive, acute, and vigorous, his command of language complete, his fertility of resource marvelous, his courage dauntless, his self-confidence absolute, and he always spoke under the influence of deep emotion, producing that intense action which is eloquence. His style was not rhetorical and ornate, but simple and direct. Carried forward by the fervor of his feelings, he often leaped to his conclusions in disregard of logical processes. He struck — to use the apt language of an English writer — he struck "on the results of reasoning as a cannon-shot strikes the mark, without your seeing its course through the air."
Judge Breese was of a different stamp of mind. His intellect was equally powerful, but more subtle; his style was less bare and more ornate; his diction more graceful, p28 but his language less bold; his will quite as tenacious, but in its manifestations so tempered with discretion as to operate with less force, and I should judge that he never spoke as if under the pressure of excitement. As Horace Walpole wrote of Murray, "he refined too much and could wrangle too little for a popular assembly."
The one was a born, popular orator; the other admirably adapted to the Bench, upon which he spent so many years of eminence, though at the same time possessing all the qualities of true statesmanship. The one resembled Fox, the other, Mansfield.
Both politicians, both members of the same party, both more or less naturally rivals, they differed as men so situated will differ — differences which exist when men see as through a glass, darkly, but disappear like mist before the sun when they see face to face.
To both, the language of Demosthenes might have been applied with truthfulness, "no convenience of opportunity or insinuation of address, or magnificence of promises — or hope or fear or favor — could induce them to give up for a moment what they considered the rights and interests of the people."
During Senator Breese's term, his State was represented in the House by Robert Smith, John A. McClernand, Orlando B. Ficklin, John Wentworth, Stephen A. Douglas, Joseph P. Hoge, J. J. Hardin, Edwin D. Baker, W. A. Richardson, Thomas J. Turner and Abraham Lincoln, the four first named serving the entire six years. Illinois has lamented the departure of Douglas and p29 Baker, Hardin and Richardson, Smith and Turner, but her people are still happy in the presence in their midst of three of those who aided in rendering her name distinguished in the annals of the nation during the time of which I speak, and Hoge, carrying to the Golden State the experience he had acquired here, is even now filling the presiding chair of the California Constitutional Convention.
Lincoln, too, rests from his labors, and his works do follow him! He was nine years the junior of Senator Breese, but the latter survived to render in his judicial capacity one of the most admirable of the tributes, in which the sense of an irreparable loss in Mr. Lincoln's death everywhere sought expression.
As a speaker, Mr. Lincoln displayed neither the imperious dignity of Breese, nor the magnetic impetuosity of Douglas, but he had that charm, exhibited only by those (and they are few) in whose souls the fountain of tears and the fountain of laughter lie close together, and bear the listener away upon the irresistible current of their mingled waters.
As a statesman, he providentially possessed — providentially for the nation's good — in addition to other eminent qualities, an unequaled patience, coupled with a wise moderation, born of native kindliness of disposition, and that certain sadness which seemed ever to have cast across his life the shadow, "you destiny is upon me!"
Embalmed in the memory of his countrymen and of the oppressed of every people, and with his name honored p30 throughout the world, the sweet remembrance of this great man shall blossom ever, though he sleeps in dust!
Senator Breese was a decided advocate of a tariff for revenue only; and by his vote in the Senate in 1846, the well-known tariff of that year became a law.
The Democratic party had triumphed in the canvass of 1844, on the platform of "all of Oregon or none," and Senator Breese, who took his positions upon principle, and never seems to have comprehended that professions on public subjects might be made for the partisan purpose of winning elections merely, planted himself squarely upon "54‑40 or fight," and so, by speech, and influence, and vote, contended to the end. In this he represented the feeling of his State. As early as January, 1846, upon Mr. Ramsey's proposition, "that the Oregon question is no longer a subject of negotiation or compromise," of the ten ayes, those of Douglas, McClernand, Wentworth, Hoge and Smith, of Illinois, make up one‑half!
But the Illinois Senators voted against advising the President to consent to the proposal of the British Government to settle the boundaries on the basis of the line of forty-nine degrees, and both voted against the treaty.
Judge Breese never saw reason to change his deliberate opinion upon the subject, which was, that the Russian line was the correct one, and that England should have been excluded from the Pacific coast, and considered that a portion of the country, his country, was unjustly and unnecessarily surrendered.
Mr. Breese was strongly in favor of the annexation of p31 Texas, and voted for the treaty to effect that result, and for the legislative resolution under which it was finally accomplished.
He steadily supported the Mexican war, and General Scott having entered the City of Mexico in triumph, he demanded that the hold then taken upon the country should not be relaxed, and that manifest destiny should be anticipated rather than postponed.
His speech in reply to Mr. Calhoun, who favored the withdrawal of our troops "to a defensive line," has become historical.
In the course of it, referring to Mr. Calhoun's assertion, that no instance could be found of any race save the Caucasian, which has established and enjoyed self-government and free institutions, and dwelling upon the advantages of the infusion of our own population, the diffusion of education, and freedom of speech, of the press, and of religion, and the generation among the Mexican people, than whom he declares there is none more capable of advancement in the arts and sciences, and assuming all the powers of the highest civilization, of high opinions of themselves, he says:
"Sir — It has been alike our pride and boast that our institutions were better calculated to elevate the masses than any others which have yet existed, and we feel it to be true; and it cannot be that it is the decree of Heaven that none but the white race shall enjoy them. It has been the abiding hope of the philanthropist that in God's good time all nations should enjoy them, and the down-trodden p32 millions of both hemispheres be exalted by their agency."
It is impossible, however, to do justice to this oration by extracts. It discusses the subject in every phase, and thus concludes:
"As I believe, sir, there are but two alternatives — either to flee the country or to hold on to our acquisitions, the result of which may be the final absorption of Mexico. I have not hesitated to declare for the latter, being well satisfied that great ultimate good to us, to her, and to humanity, is to flow from it.
"The honorable Senator from South Carolina (Mr. Calhoun) has said, sir, that Mexico is to us a dead body, and he is anxious to cut the cord that binds us to the corpse. Sir, I prefer taking her to our side, and imparting to her some of our own vitality; and with her fair proportions and most beautiful developments, by its magic influence, she will start again into life and being. If she be dead — if the light is out — we have 'the Promethean heat that can that light relume.' "
In October, 1835, Judge Breese called the attention of the public to the importance of a direct connection of the Illinois and Michigan canal, then in course of construction, with the lower Mississippi, at Cairo, by a railroad, proposing that the road should start from the termination of the canal, and proceed as near as might be by the route of the third principal meridian, through Bloomington, Decatur, Vandalia, Carlyle, Nashville, Pinckneyville, Brownsville and Jonesboro, and pointing out how it could p33 be done, and by what means, and from that time until the great result was achieved, he labored steadily to bring it about, opposing, however, the act of February, 1837, for a general system of internal improvements.
In Congress his first movement in favor of the project was marked by great sagacity. He introduced, in January, 1844, and obtained the passage of a resolution instructing the Committee on Naval Affairs to provide for an examination of the locality at or near the confluence of the Ohio and Mississippi rivers, with a view to the establishment of a naval depot and dock-yard, which he supported in an elaborate letter, under date February 29, 1844, to Hon. R. H. Bayard, of Delaware, chairman of that committee, which was printed by order of the Senate, and among other things, contains the following: "At some period, not distant, the projected railroad will be constructed from the iron mountains and copper mines in Missouri to the Mississippi river, opposite the mouth of the Ohio. From the cars which bring metal from the mines, transported across the river in ferry-boats, it will be deposited in public stores for use, or in private stores for transportation to more distant markets. Nor will it be long before the Central or Great Western railway of Illinois will be constructed, opening a route toward the lakes never to be obstructed by low water or ice. Commencing at the site of the proposed depot, and running •near five hundred miles through a region of unsurpassed fertility, it will not only bring in supplies inexhaustible, but open a communication through which naval stores p34 may be sent to the lakes, it being connected with the projected canals in Illinois and Indiana, without transhipment from boats on the rivers or the interposition of other causes which would render their transportation from other points most dilatory and expensive."
This was the entering wedge which opened up an inquiry, resulting, to use Judge Breese's language, a few years after, "in the growth of a great city at that point, of which our State will be proud. Like another queen, she will yet rise in splendor from the waters."
In March, 1844, a bill for a grant for railway purposes was introduced in the House by Colonel McClernand, than whom, writes Judge Breese, "our State never had an abler member;" and Senator Breese, in addition to a bill offered in December, 1844, introduced one in January, 1846, to grant to the State of Illinois alternate sections of land, to aid in the construction of the road, making, as Chairman of the Committee on Public Lands to which the bill was referred, the first full report ever made to Congress on the subject.
In January, 1848, Senator Breese made an elaborate report upon a bill of Senator Douglas, and in July, 1848, reported the bill of Senator, afterwards Vice-President King, in favor of Alabama.
In December, 1848, Senator Breese made another report upon a bill of Judge Douglas, going fully into the whole subject, and endeavoring to obviate all constitutional and other objections to such grants, and the argument contained p35 in it was made the basis of all the subsequent grants to this and other States.
In September, 1850, after Judge Breese left the Senate, a bill was passed which consolidated his original bill of 1846, with that of Senator King, of 1848, and under this we obtained the land.
In 1851, when Judge Breese was a member of the General Assembly, and Speaker of the House, the act was passed incorporating the Illinois Central Railroad Company, and giving it the benefit of the grant, and Judge Breese thus witnessed the close of his long labors in this direction, labors, to some of which only, this is but a mere reference, and it was in that year that he published a letter in which he says: "I claim to have first projected this great road, in my letter of 1835, and in the judgment of impartial and disinterested men, my claim will be allowed. I have said and written more in favor of it than any other. It has been my highest ambition to accomplish it, and when my last resting place shall be marked by the cold marble which gratitude or affection may erect, I desire for it no other inscription than this: that he who sleeps beneath it, projected the Central railroad."
On the 24th day of February, 1846, at the first session of the twenty-ninth Congress, the memorial of A. Whitney for a grant of public land to enable him to construct a railroad from Lake Michigan to the Pacific ocean, was presented and referred to the Committee on Public Lands, of which Senator Breese was Chairman. A similar memorial had been presented to the preceding Congress. The p36 one in question is Document No. 161, of Vol. IV, of Senate Documents, 1845‑6.
On the 31st day of July, 1846, Mr. Breese made an elaborate report from the committee in favor of the project, and transmitting a bill for its accomplishment. This is Document 466, of Vol. IX, Senate Documents, 1845‑6. The entry upon it is "Submitted, and ordered to be printed without the map." This is significant, as the map delineated the line subsequently pursued, and it is said that Colonel Benton's hostility to the recommendations of the committee prevented the printing.g This report is twenty‑six printed pages in length, and has an appendix of statistics and estimates, of twenty-five pages more, prepared with great care by the committee.
The report says: "The proposition is a startling one, and of vast importance to our country and to the world; a deliberate consideration of which, naturally resolves itself into several points, seeming, in the opinion of the committee, to claim attention in the following order:" and twelve distinct heads for discussion are then announced, being "extended in number for the sake of perspicuity," treating of the power of Congress on the subject, the practicability of the proposed work, the adequacy of the means proposed, the effect of constructing the road, up the public lands, upon manufactures, upon mineral resources, upon internal trade and commerce, upon external commerce with China and the other countries of Asia, the Eastern Archipelago and other islands in the Pacific, and upon the countries on the western p37 coast of North and South America, upon the fisheries and mercantile marine, upon the citizens of the world as a great highway of nations bringing about internal intercourse, and lastly, its effect in a moral, political and military point of view on the American Union.
Under these heads the subject is exhaustively considered in all its bearings, and the report exhibits a characteristic industry in the accumulation of facts bearing upon it, and in their persuasive presentation.
Referring to the various railroads then being built, and pointing out their meeting to join the one he advocates, Senator Breese says that then "our whole country will be brought together at the grand center in the short space of four days, allowing us not only to transport passengers, but all descriptions of merchandise and produce, from the grand center to New Orleans, Savannah, Charleston, Richmond, and Norfolk, Washington, Baltimore, Philadelphia, New York and Boston, and to the Pacific, in the same time — four days; and from the Pacific to any of the above cities in less than eight days, and to China in twenty days; so that we can bring our vast country together in four days, and the extremes of the globe in thirty days. A cargo of teas from China may then be delivered in any of our Atlantic cities in thirty days, and in London or Liverpool in less than forty-five days."
A portion of this remarkable document is devoted to an elaborate review of the geographical and commercial (external and internal) position, advantages and resources of Asia for an extensive commerce with us across the p38 Pacific, to the terminus of the proposed railroad on the shore of that sea. Starting with the Russian possessions, it treats of Manchoo Tartary, the islands of Japan, the different provinces of the empire of China proper, seriatim, describing their rivers, canals, cities, products and population, then the Polynesian Islands, New Guinea, Australia, Celebes, Java, Sumatra, Borneo, Phillippine Islands, Singapore and India, and insisting that all the vast trade with the countries here referred to will be subject to the road.
The committee state that they are aware that distinguished men entertain the opinion that the commercial route to the Pacific will be to the great falls of the Missouri; thence overland by Lewis and Clark's route to the waters of the Columbia, but decline to give it their approval, and say it cannot enter into competition with the railroad. In conclusion, "the committee believe that the present is an auspicious moment at which to commence this work; and upon the announcement of the fact, that the project has received the favorable notice of Congress, the energy of our people will be aroused to a new life. It is not a party measure, but one on which the politicians of every hue and creed can cordially unite; one which will strengthen the bonds of our union, allay sectional jealousies, and arouse a national feeling."
It has been observed by an intimate friend of Judge Breese, a prominent and beloved citizen of Chicago,6 that when the completion of the Pacific railroad was celebrated p39 with bonfire and guns, and bells and festivities, no word of tribute or acknowledgment was uttered in reference to the man who confronted opposition, in Congress and out of it, in favor of this new route for the commerce and riches of the East to enter the Western continent, proving himself, in so doing, a worthy son of Illinois, whose territorial area was itself discovered in the effort to find a new road to China and Japan.
But in the onward sweep of time, such injustice is of little moment. In superior souls there is always shown a sublime self-consciousness, a consciousness of their own desert, and an earnest faith in the object of their aspirations — a faith which, after all, forms the true realization of the ideal. They know that after they have cast their bread upon the waters, it shall return, though many days have passed.
They feel that, though they and their names should vanish in oblivion, there will yet remain that of their works which cannot perish.
Thus Shakespeare sang:
"And nothing lives, ***
And yet to times in hope, my verse shall live."
And the artist of the Middle Ages felt the immortality of his labor in its fullest sublimity, when, translating into stone the aspirations of his soul, he builded high those graceful pinnacles into the midst "of sailing birds and silent air," yet left not even on their corner-stones the slightest record of his name.
So with our grand old friend. He could carry proudly p40 to the grave the consciousness that that which he had done would live after him, whether the world so benefited forgot or remembered its benefactor.
Leaving the Senate March 3, 1849,7 Judge Breese resumed the practice of his profession, and continued in it until 1855, when he again became Circuit Judge, almost against his will. In this intervening period he was for a time a Director of the Ohio and Mississippi Railroad Company, and in November, 1850, was elected, without opposition, to the State House of Representatives for 1851‑52, and became Speaker of that body. But his political career substantially ended with his term in the Senate.
If it be essential to the definition of a politician, that he should be one who possesses the art of obtaining and holding political office, Mr. Breese was not a politician. If the term is taken to signify one who is versed in the science of government, then he vindicated his claim to that title. He was thoroughly read in history, and his acquaintance with the governmental machinery of his p41 own country was especially profound. In addition to great natural endowments, improved by cultivation, he possessed, in a marked degree, the sagacity to conceive, what measures would be conducive to the public weal, and the ability to convince others of their utility. He adhered with tenacity to ruling principles, which fixed, he thought could be left to their own operation, and although not particularly patient, he appreciated the wisdom of deliberate action in public affairs. In short, he was a statesman in the large sense.
His relative, Chancellor Livingston, wrote to his celebrated younger brother, Edward, in 1796: "Be persuaded that no extent of talent will avail without a considerable portion of industry to make a distinguished statesman;" and it seems to have run in the blood to follow that advice, for, to his great natural abilities, Sidney Breese added the fruits of indomitable intellectual toil.
His style of speaking was undoubtedly impressive, and it is certain that all his speeches are full of weighty thought. There is often an exuberance of fancy, which, if sometimes it cast "a veil over his wisdom," nevertheless could not conceal it. As Fox said of Burke: "Reduce his language, withdraw his images, and you will find he is more wise than eloquent; you will have your full weight of metal, though you melt down the chasing."
He was an ardent lover of his country, but did not indulge in extravagant professions on the subject. He felt the bond, and, like Cordelia, loved according to it, "nor more, nor less."
p42 He must have quitted the Senate with regret, for he was admirably fitted to enjoy the dignity which a seat in that body conferred, and to so discharge its duties as to be conscious of rendering service to his country, and acquiring that kind of reputation so gratifying to a high ambition. But he had already achieved so much that he need not have objurgated Fortune if his career had terminated with that retirement. He might well have addressed her in the beautiful lines of Horace (one of his favorite poets)
Laudo manentem; si celeres quatit
Pennas, resigno quae dedit, et mea
Virtute me involvo, probamque
Pauperiem sine dote quaero.
How little did he anticipate that his sun, thus going down, would so soon rise in meridian splendor upon another, and for him, his State and country, a grander realm of usefulness, and for nearly a quarter of a century flood it with the steady effulgence of its rays.
Two years after his return to the Circuit Bench, Judge Breese was elected to that of the Supreme Court, in place of that excellent magistrate, Judge Scates, who had voluntarily retired, to embark in large practice in Chicago, where he still resides.
Judge Breese took his seat at the November term, 1857, and continued to discharge the duties of his high office (having been re‑elected in 1861 and 1870) with undiminished vigor until his death, a period of nearly twenty‑one years, during which he was twice Chief Justice.
For thirteen of these years he had but two associates, p43 and the struggle with what Lord Denman called "that gigantic monster, arrear," required the most unremitting application.
With the exception of Judge Skinner, whose resignation after December term, 1857, in view of the proofs he had given of marked ability as a jurist, and whose comparatively recent death deservedly inspired universal regret, the State is fortunate in the survival of those who shared in these labors. One8 of them, after many years of distinguished judicial service, has devoted his leisure to contributions to science and literature, of such value as to somewhat mitigate the sense of deprivation at his withdrawal from the field of jurisprudence; and the two,9 who in succession occupied his place, remain the leaders of the Bar of the metropolitan city of their residence, and maintain (it being difficult to add to) the eminent reputation achieved upon the Bench.
The other10 still renders to Illinois, as a member of her highest judicial tribunal, the fruits of his thorough legal knowledge, large experience and conscientious industry, and the inestimable benefit of his upright character and example. Long may he be spared to us, standing like some mighty oak, unscathed by the tempest or the axe, lifting its lofty head in undiminished vigor amid the sturdy forest of a later growth.
Judge Breese brought to the Bench great experience p44 in affairs, a wide and varied culture, a vigorous and sagacious mind, and the highest sense of honor.
His opinions, in addition to those in the second, third and fourth of Scammon, adorn the reports from the nineteenth to the eighty-fifth volumes inclusive, and will extend into the eighty-eighth. They number, up to and including the eighty-fifth, nearly nineteen hundred. They cover almost, if not quite, the entire field of judicial investigation, ruling nearly every conceivable point of pleading and practice at law and equity, and discussing questions in constitutional, commercial, corporation, criminal, real estate and revenue law.
They are characterized by closeness of thought, great familiarity with the books, strong grasp of general principles, power not only of analysis but of generalization, and marked elegance of style.
They render it apparent that justice was to him as the Tatler describes it to have been to Lord Holt, and as might be said of all great magistrates, "a cardinal virtue;" and while he gave to precedent its due weight, and adhered with pertinacity to the principal stare decisis when a rule of property or of commercial necessity and convenience, he nevertheless was enabled to find, by resort to general principles, relief from decisions or technical rules, when, in his judgment, invoked to defeat the claims of justice.
I do not find that he had been particularly successful as an advocate or practicing attorney, and it is certain that he did not manifest any of the leaning to one side or p45 the other, which is sometimes observable in those who have been distinguished as such, before the assumption of the ermine. But when he had once arrived at conclusions he was convinced were correct, he was exceedingly tenacious of them, and powerful in their maintenance.
Although he had fixed political views, he was absolutely free from bias in that regard in his judicial action, and was so well balanced in this that he did not even err from the fear of being affected by prejudice or predilection.
Possessed of a most retentive memory, he was enabled not only to refer without effort to every general statute and every important decision when needed for the solution of any pending legal question, but to delight his judicial associates and his friends with quotations from the Latin and English classics (and, indeed, works not strictly classical), with which, being by nature a student and an ardent lover of literature, his mind was stored.
I personally remember a striking instance of this power of recollection, having listened, with others, with admiring pleasure, in a ride from Mt. Vernon to Centralia, many years ago, to much of Akenside's Pleasures of Imagination, which Judge Breese repeated without the slightest hesitation, and with apparent accuracy.
His judicial style was graceful, easy and flowing, sometimes too ornate, but always pleasing, and often enlivened by witty or humorous allusions, which, relieving the argument, did not distract from its solidity; and while he dealt much in brief quotation, he quite as frequently displayed p46 his intimate acquaintance with the best authors by the unconscious reproduction therefrom of thoughts and phraseology, made his own by assimilation, precisely as was claimed in reference to David Paul Brown, that he spoke Shakespeare, but did not quote him.
In some particulars there was a striking resemblance between Chief Justice Breese and the celebrated Chief Justice of Pennsylvania, John Bannister Gibson. Judge Gibson lived to an advanced age, thirty-five years of which were spent upon the Bench, and died in the harness. His opinions unite to vigor, clearness and precision of thought, a felicity of diction seldom equaled and perhaps never surpassed, and it is this latter characteristic which, years since, drew my attention to the likeness, at least in that, between these two great men.
It is not merely elegance of diction, however, that strikes one in the perusal of Judge Breese's judicial productions, but elegance coupled with energy of declamation. In this he differed from such masters in the felicitous use of language, as Lord Stowell and Judge Gibson. His sentences may lack the chaste severity of many of the utterances of these magistrates, but they possess a fervid imaginative force all their own.
His integrity was above suspicion. The ermine which he wore was as unspotted as the garment of a shining one.
His freedom from any act or word inconsistent with the trust committed to his charge was absolute, and so keen was his sense that the administration of justice must necessarily be clear of any, the slightest stain, that it has p47 seemed to me that he, although catholic in his sympathies, and not uncharitable by nature, was sometimes intolerant and severe in his examination of causes in which members of the Bar might have been placed under circumstances which he thought required explanation.
In appearance he was every inch a Judge.
"Deep on his front engraven
Deliberation sat and public care."
His very look "drew audience and attention."
But with all this dignity of demeanor, this majestic aspect, there was coupled a courtesy instantly felt, but altogether indescribable — a certain subtle essence of good breeding and refinement, which escapes if one seeks to confine it within the limits of expression.
And yet he was naturally imperious, and this must undoubtedly, sometimes, have manifested itself in the conference room, but it was never displayed toward those whom youth or inexperience, or other cause, placed below the plane on which this intellectual monarch stood.
I have adverted, in speaking of him as a statesman, to his indomitable industry. This was an equally striking feature of his career as a Judge, his immense capacity for labor to good ends, and his constant devotion to its exercise. He understood well that the most superior faculties may become extirpated by disuse, and it must be conceded that as to the understanding, reason, memory, imagination, he never brought himself under this sentence, "take, therefore, the talent from him."
From earliest youth he was assiduous in the effort upward, p48 and, to the very last, his "gray spirit yearning in desire," still nerved him to renewed exertion.
"To strive, to seek, to find, and not to yield."
Illustrations of the mental traits I have ascribed to Judge Breese are afforded in abundance by his public productions. Take, for example, his sense of humor and talent for indulging in witty or humorous comments or expressions.
In his address upon the early history of Illinois, he gives extracts from the records of Randolph county, of the proceedings in "The Court or the Audience of the Royal Jurisdiction of the Illinois," and, among others, the following case ex contractu:
"Between Raimond Brosse, called Saint Cernay, inhabitant of Kaskaskia, plaintiff, to the effect that the defendant, hereinafter named, be made to acknowledge a note executed by the deceased, Louis Langlois, dated the 26th of May, 1749, and that having acknowledged it he do pay the sum of sixty francs (livres), of the first part, and Charles Lorain, called Turascon, manager and administrator of the said deceased, Louis Langlois, and of Louise Girardy, his widow, and now wife of the aforesaid Charles Lorain, defendant, on the other part. The said note being examined, the parties heard, and all things considered, we condemn the defendant to pay without delay to the plaintiff the sum of sixty francs (livres), the amount of the said note, and also the costs of suit, which we have taxed at twenty-eight francs (livres) and ten cents (sols). p49 Done at New Chartre, in our hearing, we holding court Saturday, the 5th of June, 1756. Chevallier."
Upon which Judge Breese thus comments:
"The trial by jury — that boast of the Anglo-Saxon and his descendants, was unknown here — the law and facts in every case being decided by the Judge. If this unlucky 'manager and administrator' could have demanded a jury, he might have fared much better than he did — they might have required proof that he had other assets of the deceased Langlois, besides his widow, and in default thereof found against the plaintiff! The 'all things considered' by the able magistrate were no doubt, in part, the youth and beauty of the widow, and the snug little property she brought to the defendant, reasons amply sufficient why he should pay the note, and the costs also!
So, in his opinions, we find the outcropping of the same vein.
Thus, in a case involving a title under a patent, where there were two soldiers of the same name, in the same company of the same regiment, Judge Breese styles those individuals throughout the opinion as the "two Dromios."h
In another (76 Ill. 283), where the interpretation of contract was drawn in question, and the inquiry was whether the strength of a hedge was thereby guaranteed, the learned Judge holds that there is was not, and says: "Paul may plant and Apollos water, but nature, in her wonderful and mysterious operations, can alone give the increase."
This same characteristic appeared in his conversation, p50 his correspondence, and his remarks when holding court upon Circuit, as in his letter to Judge Caton, where he relates the anecdote of Associate Territorial Justice Stewart, that he esteemed the turkey "the most inconvenient of the poultry tribe, as it was too large for one, and not large enough for two," or his well-remembered reply when, at nisi prius, a leading lawyer complained that he had lost, out of his hat, a brief containing twenty reasons for sustaining a demurrer to a declaration, that "one good reason from his head would be quite sufficient."
Again, no one after perusing any of his vigorous dissenting opinions can entertain doubts as to his native combativeness.
For instance, at the April term, 1859, in a conviction upon an indictment for murder, Judge Breese, in commenting upon a rule in relation to proof of the genuineness of handwriting by comparison with other writing conceded to be genuine, announced by the majority as "well settled and universally observed," says: "I will undertake to show, and I think successfully, that the rule of evidence here treated of is not as stated — is not 'well settled,' nor 'universally observed,' and if there be no settled rule on the subject, that the one adopted by the court is not the most reasonable and practical," and he proceeds to examine at length the reasons upon which the rule contended for was alleged to rest, and quotes fully from the authorities.
The second point upon which the judgment is reversed, p51 the separation of the jury, there being no evidence that the jurors separating had been tampered with or improperly influenced, he treats as equally untenable, and sums up an animated strain of mingled argument and eloquence: "Should such a criminal escape, the justice of the State might well be impeached. 'Judex damnatur, cum nocens absolvitur.' There is not in my judgment a single prominent fact in this case, consistent with the innocence of the prisoner, but —
'In law no plea so tainted, or corrupt
But, being seasoned with a gracious voice,
Obscures the show of evil.' "
So in Swift v. Castle (23 Ill. 207), where the principal controversy arose upon the question whether, where a marriage settlement specifies one or more modes of appointment, or states a particular object for which the property may be sold, or for a different object, the wife may appoint in any other mode than that specified, or for a different object than the one stated, Judge Breese files two powerful dissenting opinions, one of them rendered necessary by way of rejoinder, as he complains, by "a new point introduced into the case" by the Chief Justice in a separate opinion, in reply to his answer to the majority, which point he says "had been by the whole court previously ignored." Nothing in this kind of composition can exceed in vigor that with which Judge Breese attacks the positions of his associates.
In the course of his first dissent, after thorough discussion p52 of the authorities, he thus gracefully disposes of such judicial views as seem to conflict with his own:
"From the time of Lord Macclesfield, in 1740, and anterior thereto, down to the case of Socket v. Wray, in 1793, the current of decisions was unbroken. Sir Pepper Arden cast into it one small pebble, followed by Lord Loughborough with two of larger size, but they failed to impede its force. It has flowed on to our day with undiminished power, not rippled even by the futile efforts of these distinguished jurists, and no English Chancellor, and but few in our own country, have repeated their experiment."
But it is idle to multiply references. Nearly all his judicial utterances when in a minority are fine specimens of aggressive power.
It would be a grateful task to run through his opinions, point out the importance of the questions discussed, and dwell upon the admirable manner in which they are adjudicated; but the limits of this sketch render this impossible. Lord Brougham wrote of Lord Stowell, referring to one characteristic only, that: "To give samples of his happy command of language would be an easy thing, but it would almost be to cite the bulk of his judgments;" and I think not a volume of the reports of cases in the decision of which he participated can be opened without justifying the application of the remark to Judge Breese, not only in that particular, but others to which I have adverted.
Stuart v. The People (3 Scammon, 395), upon the subject p53 of the right to punish for contempt, in which Judge Breese (then of the age of forty‑two years) delivered the opinion of the majority, Judge Douglas dissenting, and Judge Caton not participating; Bunn vs. The People (45 Ill. 397), involving the determination of the meaning of the word "officer," Judge Breese's definition (he was then sixty-seven) being afterward incorporated into the State Constitution; and Munn v. The People (69 Ill. 80), involving the constitutionality of the law in regulation of the warehousing and inspection of grain, in which Judge Breese (at the age of seventy-three) spoke for the court, are fairly illustrative of his judicial treatment of matters in controversy before him at different periods of his life, though he discussed the widest range of subjects with equal felicity and quite as much precision.
The decision in the last case mentioned was of peculiar public importance and novelty.
Judgment had been rendered against Munn & Scott, by the Criminal Court of Cook county, upon a proceeding by information for a violation of certain sections of the Warehouse Act.
They had leased premises for the purpose of erecting and had erected thereon the warehouse described in the information, in which to store grain for hire. Their property was private property, and their business was wholly a private enterprise, and as the right not only to acquire, but to enjoy property was an absolute right, and the Bill of Rights was intended to protect the citizen as against the agencies of government itself, it was insisted p54 that the act in question, which assumed control in the public interest over the defendants' property and their use of it, was repugnant to the provisions of the Bill of Rights: 'No person shall be deprived of life, liberty or property without due process of law,' and 'private property shall not be taken or damaged for public use without just compensation.'
It will be perceived that the discussion must have gone down to the foundation. The general right of the State to prescribe rules for the regulation of property and business was plain, but what were its limitations?
Sumptuary laws and laws regulating prices were enacted for centuries prior to Declaration of Independence, but how far can they be justified in this country since that event, and how far are they reconcilable with liberty?
The opinion of the court by Chief Justice Breese asserts the general right of regulation in the Legislature, and declares: "Every subject within the domain of legislation and within the scope of civil government, not withdrawn from it by the Constitution of the State, or of the United States, can be dealt with by that body by general laws, to affect the whole State, and all the people within it. That body is, emphatically, the guardian of the public interests and welfare, and would be derelict in its duty did it fail to exercise all its powers to their promotion and protection. That body is the sole judge of such measures as may advance the interests of the people." Describing the manner in which the great internal commerce of the State is conducted, and commenting upon p55 the fact that a large proportion of our cereals, to reach the markets of the world, were compelled to pass through certain warehouses called elevators, and subject to such charges as their owners might see fit to impose, he says that if the Legislature find "the owners and managers of these warehouses are an organized body of monopolists, possessing sufficient strength in their combination, and by their connection with the railroads to State, to impose their own terms upon the producers and shippers of these cereals, to the great detriment of the latter, who are under a kind of moral duress in resorting to them," that it cannot be an usurpation of power for the Legislature to bring them in subjection to law, and so to regulate their conduct and charges as to prevent oppression and extortion, and that if the means provided result in some reduction of their receipts, this constitutes no deprivation of property. And, he continues: "All regulations of trade with a view to the public interest may more or less impair the value of property, but they do not come within the constitutional inhibition unless they virtually take away and destroy those rights in which property consists. This destruction must be, for all substantial purposes, total ***. This law in no respect affects the title, possession or use of this warehouse by the plaintiffs in error. It deprives them of nothing they owned and possessed at the time of its enactment. Anticipated profits are not and cannot be held and regarded as property in the ownership or possession of him who owns the article out of which profits are expected to flow. The property p56 is one thing and remains untouched; the profits are not in esse, and cannot be claimed as property ***. Ever since the organization of our State Government, the Legislature has exercised this power unquestioned. Familiar instances are found in regulating public ferries and public mills, and fixing the compensation in the shape of toll. Another is, in delegating power to municipal bodies to regulate charges of hackmen and draymen, and the weight and price of bread."
Judge Breese then brings to sustain his argument the strong illustration of the regulation of profits from the loan of money, which has been done from the earliest times, and no court has ever questioned the right. To the suggestion that such legislation has been so universal and continuous that business has been adapted to its requirements, and that this is not true of the new business of elevators, whose owners have engaged in it on the faith of existing circumstances, he points out that capitalists make large investments to carry on their business, upon the strength of the profits they may make under the laws as to the rate of interest, yet if the General Assembly afterward reduces the rate, the money-lender would not be listened to a moment if he appealed to the Bill of Rights. "Would any Court in Christendom," says the Judge, "condemn such an enactment as unwarranted by the fundamental law? The use of money is a matter of the greatest public concern, and that it may be regulated by law has never been authoritatively denied. Kindred subjects, such as public warehouses, public mills, the weight and p57 price of bread, and public ferries, are so connected with the public welfare, that a government destitute of the power to regulate them — to impose such restrictions upon them as may be deemed necessary to promote the greatest good of the greatest number, would be but the shadow of a government, whose blazonry might well be the 'cap and bells,' and a pointless spear ***. We place the right to legislate on this subject upon that power, call it by what name you will, inherent in every organized civil government. Every sovereign power possesses inherently, unrestricted legislative power, where the organic law imposes no restraints. The power to legislate on all subjects affecting the great interests of a whole community must be conceded to exist, and it will not cease to exist until civil government shall be resolved into its original elements."
The case was carried to the Supreme Court of the United States, which, in affirming the judgment (4 Otto, 113), adopted the same line of reasoning, supported by the same illustrations. It is impossible to over-estimate the importance of these decisions.
In the Dartmouth College Case (4 Wheaton, 518) Chief Justice Marshall held the charter of incorporation to be a contract, the obligation of which could not be impaired without violating the Constitution of the United States. It is now held that monopolies not resting upon legislative grant may be regulated by the State when the public good demands it. And upon the questions likely to rise in reference to this subject, the views of Chief Justice p58 Breese will, in the coming years, be always referred to as presenting persuasive argument upon one side of the controversy, when the case was of first impression.
Here I must pause. Inadequate as is this tribute to the memory of the illustrious dead, it has already been protracted beyond the limits usual to such occasions.
The opinions which make so important a part of our reports constitute a monument to his fame, which, in the words of Judge Story: "We may fondly hope will endure as long as the language in which they are written shall continue to instruct mankind." They will be appealed to years after generations yet unborn have succeeded us and each other, in the immortal march of life, as the repository of enlightened rules in the administration of justice, based upon the eternal principles of right and wrong.
I have endeavored to delineate the life and character of our friend, as I find them portrayed in the public records of his State and Nation, and as I knew them during the years of the acquaintance with which I was honored.
Even if otherwise qualified for the task, it would not be expected that I should enter the circle of his private life, and dwell upon the domestic virtues he possessed. It would indeed be vain, as was beautifully suggested by one of the most illustrious of Chancellors, to seek to distinguish in him the private from the public personage; the man, the husband, the father of a family, the citizen, all became consecrated to the glory of the magistrate, to which his life was devoted.
p59 His widow and many children survive him — some had preceded him — but notwithstanding nearly sixty years in the public service, he had accumulated but little or nothing, for the discharge of the public trusts committed to him absorbed all his time and attention, and he was rewarded by no other compensation than the moderate salaries provided by law.
But to his family in common with his State and country, has fallen the inheritance of his well-earned fame. It is, indeed, "better than great riches."
Fortunate in the distinction which accompanied his life, he was equally so in the fitness of his death. He had had no previous sickness, and no apparent premonition of the end, but it is told us by one of his associates, that as his life drew near its close, whatever of asperity may have theretofore occasionally been discernible, had entirely given place to those "beautiful graces which make old age so lovely." It was as if to this venerable man a fulfilment of the prediction had been vouchsafed, that "it shall come to pass at evening time, it shall be light."
He did not outlive his usefulness — he did not survive the wreck of his powers. He died in the full vigor of all his faculties, and in the faithful and full discharge of his official duties. Death was not an evil, but a consummation. He might well have realized that "the sweetest canticle is nunc dimittis when a man hath obtained worthy ends and expectations."
When the grave closes over such a one, and over all that partiality or affection may have added to, or envy p60 or uncharitableness may have detracted from, his character, then comes the public judgment, too late for justice to him living, but not too late for justice to his memory, that judgment which is the heritage a great man leaves his country.
As we look back upon this long life of unostentatious devotion to duty, we begin to comprehend the loss suffered in his departure, and to appreciate the gain which the garnered fruits of his skillful toil, and the lesson of that life of faithfulness afford.
"As sometimes in a dead man's face,
To those that watch it more and more,
A likeness hardly seen before
Comes out — to some one of his race.
"So now these aged brows are cold,
We see him as he is, and know
His likeness to the wise below,
His kindred with the great of old."
1 Hon. William R. Morrison.
2 Honorable Stephen T. Logan died July 18, 1880, and Judge Harlan about the same time.
3 Hon. Lyman Trumbull.
4 Hon. Samuel H. Treat.
5 See post.
6 Hon. Thomas Hoyne.
7 General James Shields was elected to succeed Judge Breese. He had shortly before returned wounded from Mexico, and the on dit was that the bullet that "wounded Shields killed Breese." The election was declared void by the United States Senate on the ground that Gen. Shields had not been a citizen for the required period. A special session of the General Assembly was called by Gov. French to meet after the requisite time had expired and Gen. Shields was again elected. Mr. Shields was born in county Tyrone, Ireland, in 1810; came to the United States in 1827; was member of the Legislature, Auditor of the Public Accounts and Judge of Supreme Court of Illinois; Commissioner of the General Land Office; Maj.‑General in the Mexican and Civil wars, and United States Senator from Illinois, Minnesota and Missouri. Death closed his distinguished career in 1879.
8 Hon. John D. Caton.
9 Hon. Charles B. Lawrence and Hon. Corydon Beckwith. Judge Lawrence died April 9, 1883.
10 Hon. Pinckney H. Walker.
a This approximate figure, which may be as much as 20% too high, glosses over an important Federal constitutional problem and a lot of murky finagling. The details are given by Solon Buck in chapters 8‑11 of Illinois in 1818.
b Judge Breese gave his talk in the State Capitol.
c From "My Native Village", a poem by John Howard Bryant.
e Sidney Breese and Samuel Morse were first cousins. Samuel Breese (1737‑1800) was the grandfather of both.
f This curious sentence certainly makes it sound as if John Quincy Adams died from the collapse of the Capitol on him: he didn't. He did die in the Capitol, but of a cerebral hemorrhage. The "last of earth" is an allusion to his last words, as traditionally reported: "This is the last of earth. I am content."
g A very puzzling assertion. The map in question is reproduced in the print volume, specifically captioned as the map "accompanying the report of Senator Breese, of Illinois, on the Pacific Rail Road, in 1846, but which was not printed with that document" — yet it does not show "the line subsequently pursued", or indeed any other rail route across the United States or anything else that seemed relevant to me; since the very large foldout was extremely difficult to scan, I do not reproduce it: independently replicating, I think, the reasons for which the Senate chose not to print it.
h Identical twins in Shakespeare's Comedy of Errors.
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