mail: Bill Thayer Italiano Help Up Home previous: Chapter 9 This webpage reproduces a chapter of Illinois in 1818 by Solon J. Buck in the sesquicentennial edition, University of Illinois Press Urbana, Chicago, and London 1967 The text is in the public domain. This page has been carefully proofread and I believe it to be free of errors. If you find a mistake though, please let me know! next: Chapter 11 This site is not affiliated with the US Military Academy.

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 p262  Chapter 10
Framing the Constitution

It must have been a great event for the quaint old town of Kaskaskia when the constitutional convention assembled on the first Monday in August, 1818. Composed of 33 members, this body was almost twice as large as the council and house of representatives combined of the last territorial legislature. Doubtless many who were not members of the convention but were interested in the outcome of its deliberations visited Kaskaskia during the session; Bennett's tavern was filled to overflowing. Among the distinguished men known to have been present were the Reverend John Mason Peck, Baptist missionary, who disclaims any business with the convention, and Edward Coles, afterwards governor and leader of the antislavery party, who asserts that he not only attended the convention but also "made the acquaintance and learned the opinions, views and wishes of many of its prominent members." Neither of these men, unfortunately, left any detailed account of his observations, and practically the only available sources of information about the convention are the recently discovered "Journal" and the very inadequate and colorless reports in the Intelligencer.1

All the representatives elected to the convention except the four from the nearby counties of Washington and Jackson  p263 were present on August 3, the date set by the enabling act for assembling. A temporary organization having been effected, the "representatives from the several counties were then called" and the members present took their seats. Permanent organization followed immediately: Jesse B. Thomas was elected president, William C. Greenup, secretary, and Erzaº Owen, sergeant at arms. Judge Thomas was the most prominent man who had been elected to the convention so that his choice as president was a natural one and may have had no political significance. Greenup had held various clerkships in the territorial legislature and in the courts of Randolph County, and in spite of his hostility to the governor had been appointed clerk of the circuit court and reappointed clerk of the county court the preceding January. Doubtless he was one of the few men available who were qualified for the position. The "Journal" gives no information about the balloting for officers, except the names of the men elected, but it is clear that, if there was any contest between the old political factions over the organization of the convention, the Edwards faction certainly was not in control.​2 The only other business transacted the first day was the appointment of three committees, one to examine the credentials of the  p264 members, one to frame a set of rules, and one to secure a minister to open the next meeting with prayer.

The first real work of the convention was necessarily to ascertain officially the result of the census in order that it might know whether or not it was authorized, under the enabling act, to proceed with the framing of a constitution. On the second day, August 4, after the representatives from Jackson and Washington counties had been admitted, Mr. Kane moved the appointment of a committee "to examine the returns made to the secretary's office of this territory . . . and make report thereon. And also, to receive and report such other evidence of the actual population of the territory as to them shall seem proper." Kane himself was made chairman of this committee as he had been also of the credentials committee. On the following day he reported first for the latter committee, a simple matter as there appear to have been no contests over seats, and then presented the census returns by counties as ascertained from the secretary's office. The lists totaled 40,258, and increase of 5,638 over the first reports in June. Besides 1,281 for Franklin County which had not been reported on before, this increase was divided among the different counties in numbers varying from 16 to 1,847. In Bond, Randolph, Johnson, and Pope the increments were less than 100, while in Madison, St. Clair, Gallatin, and Crawford they were above 500. These additions were, in general, the results of the supplementary census, which appears to have been taken in all but two counties at least.​3 Only four of these additional returns are now available but they throw some light on the character of the census. The Washington County commissioner evidently went into outlying districts where the people had not previously been counted, and even visited and counted those in the western part of Edwards County, who were widely separated from the main settlements near the Wabash. In the returns from  p265 Jackson, Gallatin, and Crawford, however, it is clear that it was the newcomers who were being counted, and the fact that very few among the additional names are to be found in the lists of old settlers in the county histories would indicate that many were included who were merely passing through the county. Among the names in the additional census of Gallatin is that of C. Trimmer, who figures as the head of a family of 50. This entry refers to a party of English emigrants on its way to Birkbeck's colony in Edwards County. The discrepancy for several of the counties between this census and that of the United States in 1820 is of course increased by the supplementary figures.

The convention appears to have raised no question as to the adequacy of the census. At any rate, the "report was read, considered and concurred in." After postponing the consideration of rules until the following day, the convention was ready to decide the all-important question of the expediency of advancing to statehood. Mr. Prickett offered a resolution declaring that as "there are upwards of 40,000 inhabitants" in the territory, "it is expedient to form a constitution and state government." A motion by Kane to postpone consideration of the resolution until the following day was voted down; the resolution was then considered and passed. Judging from this prompt action it would seem that the opponents of statehood, if there were any in the convention, must have numbered only a small minority and must have recognized the futility of any opposition. It is doubtful if Kane's motion to postpone consideration of the resolution for a day was due to any desire to check the statehood program. Had he entertained any such designs, he was too shrewd to have missed the opportunity afforded by the character of the census and especially by the inclusion of the estimated population at Prairie du Chien. Had these figures been omitted, as they should have been under the provisions of the enabling act, totals would have been below the requisite 40,000.​4 As chairman of the committee on the census, Kane might, had he so desired, have  p266 presented a report which at least would have made the convention hesitate.

The alternative procedure of providing for a second convention to frame the constitution does not appear to have been considered at all, for immediately after the adoption of the "expediency" resolution, provision was made for "a committee of fifteen, one from each county . . . to frame and report to this convention a constitution for the people of the territory of Illinois." The chairman of this committee was Leonard White of Gallatin but, according to all the evidence, the directing spirit was Elias Kent Kane. The report of the committee, however, certainly did not represent the latter's wishes in all particulars. The committee took a week in which to prepare its draft of the constitution; the convention in the interval considered and adopted an elaborate body of rules of procedure, provided for the printing of the journal and the draft, and contracted for stationery.​5 On the sixth Mr. Gard offered a resolution for a committee "to draft an ordinance to establish the bounds of the state of Illinois and for other purposes"; and Mr. Hubbard offered another for a committee "to draft an ordinance acknowledging and ratifying the donations made by an act of congress passed in April, 1818." On motion of Mr. Kane consideration of both of these resolutions was postponed until the following day, when the first was dropped and for the second was substituted, again on motion of Mr. Kane, another resolution directing the committee of 15 "to consider the expediency of accepting or rejecting the propositions made to this convention by the congress of the United States, and if in their opinion it shall be expedient to accept the same, it shall be their further duty to draft an ordinance irrevocable, complying with the conditions annexed to the  p267 acceptance of such propositions in the act for the admission of this territory in the union, and report thereon."6

On the same day, the seventh, "Mr. Kane presented two petitions signed by sundry inhabitants of Randolph County, one praying that this convention shall declare in the constitution to be formed that the moral law is the basis of its structure, and acknowledge therein an universal parent. The other praying that this convention may declare the scriptures to be the word of God, and that the constitution is founded upon the same." These petitions emanated from a sect of Covenanters who had established themselves in Randolph County. They were referred to a select committee but no attention was paid to them in the framing of the constitution and, according to Governor Ford, the Covenanters for many years "refused to work the roads under the laws, serve on juries, hold any office, or do any other act showing that they recognize the government." The only exception was in the convention election of 1824, "when they voted for the first time, and unanimously against slavery."7

On Saturday and Monday, the eighth and tenth, the convention marked time. On the eleventh Mr. Bankson announced the death that morning of his colleague, John K. Mangham of Washington. The members of the convention agreed to wear crepe on the left arm for 30 days in testimony of their respect for Mr. Mangham's memory, and a committee was appointed to make arrangements for the funeral. This took place late in the afternoon "attended by the members of the Convention and the citizens of the place generally." Two days later a committee was appointed to inquire into the expediency of ordering an election to fill the vacancy, but the committee reported "that an election could not be effected in time to answer the purpose of giving the said county their full representation in this convention before the same will have risen." This report was concurred in by the convention and no election was held.

 p268  The draft of the constitution was finally reported by the committee of 15 on Wednesday the twelfth. It consisted of a preamble and eight articles, the greater part of which had been copied from the constitutions of neighboring states. Periods of time, ages, and amounts of salary were left blank to be filled in by the convention. Accompanying the draft was an ordinance accepting the federal donations and agreeing to comply with the requisite conditions; this was adopted by the convention without change. The day after the introduction of the draft of the constitution the convention took it up for consideration, section by section, and made various changes. This "first reading" took two and a half days and at its conclusion a committee of five was appointed, none of whom had served on the committee of 15, to suggest additional articles or sections which it might consider necessary to complete the draft of the constitution. The work of this committee was primarily to prepare a schedule for putting the new government into operation and that same day presented its first report on the temporary apportionment of senators and representatives.

On Monday the seventeenth, the second reading of the constitution was begun and the first five articles were considered. Tuesday morning the apportionment proposed by the committee of five was read the second and third times, amended, and adopted, after which the second reading of the constitution was continued and completed. A schedule of 16 sections was then reported by the committee, read the first time, and considered section by section. The committee also presented at this time a "separate report relative to a permanent seat of government." The morning of the nineteenth was taken up with various reconsiderations, and in the afternoon the convention began the third reading of the draft "as amended and engrossed." Some time was spent the next morning considering resolutions relative to the location of the capital, after which the third reading of the constitution was continued and completed. Various additional sections proposed from the floor were then considered. On August 21 a "committee of enrolments" was appointed, consisting of Kane, Stephenson, and Cullom, the schedule received  p269 its second and third readings, and various resolutions relating to qualifications for voting at the first election and to the location of the seat of government were considered. "A committee of revision" consisting of Lemen, Omelveny, and Kane was appointed the next day, Saturday the twenty-second, "to examine the draft of the constitution as amended and passed, and make report to this convention on next Monday morning." This committee "corrected sundry inaccuracies" and recommended the expunging of one entire section. Its report, presented by Kane, was concurred in by the convention, but even after that several changes were made in different sections by reconsideration. A resolution relative to the seat of government was adopted on the twenty-fourth, and finally on Wednesday, the twenty-sixth, the constitution was signed and the convention adjourned.

The preamble of the draft and article one, which deal with the distribution of the powers of government into three departments, follow in the main the wording of the constitutions of Indiana and Kentucky; the preamble contains the statement of the boundaries assigned by Congress. These sections were adopted by the convention with only slight changes.

The second article, dealing with the legislative department, follows very closely the constitution of Ohio. Section one provides for a bicameral legislature, and sections two to six inclusive deal with the election and qualifications of members. At the first reading the blanks were filled in to make the elections biennial on the first Monday in August but this necessitated a personal provision for the date of the first election. At the second reading the first Thursday of September, 1818, was selected, but some of the members felt that this was too early. As a compromise the third Thursday was finally adopted almost unanimously. Representatives were required to be 21 years of age, citizens of the United States, and residents in the district represented for 12 months preceding the election. For senators, the requirements were the same except that the age limit was 25 and they required to "have paid a state or county tax." The convention added the latter qualification for representatives also, at the third reading. The terms of senators were fixed at four years,  p270 one-half to be elected biennially. Both senators and representatives were to be apportioned according to the number of white inhabitants. The number of representatives was to be not less than 27 nor more than 36 until population should reach 100,000, and the number of senators was never to be less than one-third norº more than one-half the number of representatives.

The seventh section of article two originally provided that each house should choose a speaker, but this was changed on third reading to except the senate, after sections establishing the office of lieutenant governor had been added to another article. Sections eight to seventeen, inclusive, dealing with procedure in the legislature, were of the usual sort and received only verbal changes at the hands of the convention. Section eighteen, however, which dealt with salaries, caused a bitter contest. After the blanks had been filled, at first reading, the section prohibited the legislature from allowing, before 1824, annual salaries greater than $1,250 for the governor and $500 for the secretary of state, while the pay of members of the legislature was not to exceed $2 per day. On a second reading the limit for the secretary of state was raised to $600 and that for the members of the legislature to $3 per day, but at third reading, on motion of Kane and Messinger, all reference to the salaries of members of the legislature was dropped. Had it not been for a controversy over the salaries of justices of the supreme court, provided for in section five of article four, it is probable that no further changes would have been made in this section. At second reading the salaries of justices were fixed at $1,250, the same amount as had been allowed the governor, but at third reading this sum was reduced to $1,000. The following day a motion for reconsideration of the section limiting the governor's salary was defeated by a tie vote but three days later it was carried, 16 to 14. The limit was then reduced from $1,250 to $1,000 by a vote of 17 to 14. That this action was taken in retaliation for the reduction of the salaries of justices is evident from the fact that nine men who voted for reduction in each case opposed it in the other. Enough other members, however, were in favor of economy to carry both votes.

 p271  Two sections of article two of the draft dealing with "ministers of the gospel" are of special interest because of the extensive discussion in the Intelligencer of the political activities of clergymen during the later territorial period. A writer who signed himself "A foe to religious tyranny" had roundly denounced the political sermons of certain ministers and their theory that only "professors of religion" should be elected to office. In the first draft of the constitution, section twenty-six provided that: "Whereas, the ministers of the gospel are by their professions, dedicated to God and the care of souls, and ought not to be diverted from the great duties of their functions: Therefore, no minister of the gospel or priest of any denomination whatever, shall be eligible to a seat in either house of the legislature." As a corollary to this was section thirty-three: "No minister of the gospel, or priest of any denomination whatever, shall be compelled to do militia duty, work on roads or serve on juries." The introduction of these sections called forth a communication in the paper of August 12, addressed to "The members of the Illinois Convention, now in session." "It is with peculiar pleasure," said the writer,

A motion to strike out section twenty-six which was made during the first reading was voted down, but on later reconsideration both sections were dropped from the constitution.

Another section of the second article of the draft which failed  p272 to meet with the approval of the convention was number thirty-five. This prohibited the removal of county seats without "full compensation . . . to the persons injuried [sic] by such removal" and also prohibited the organization of new counties "unless a petition shall be presented to the legislation, signed by at least two hundred qualified voters, residing in the bounds of the district applying to be laid off." At the first reading this whole section was stricken out, and an attempt later to introduce into the schedule a section dealing with the organization of counties was also a failure.

Section twenty-four of article two as originally drawn provided for annual sessions of the legislature but at second reading these were changed to biennial. The first session was to begin "on the first Monday of October next" and others "on the first Monday of December next ensuing the election." Reasons which may have influenced the convention to decide on biennial instead of annual sessions are indicated in a "letter from an inhabitant of St. Clair county, to a Member of the Convention," an extract from which was published in the Intelligencer of August 19. After declaring "that the lapse of a few months will not furnish a sufficient test of the qualities of the theory or practicable operation of the laws passed at any one session," the writer illustrated his point by calling attention to the activity of the territorial legislature "enacting at one session and repealing at the next, until our laws on some subjects have become so confused, that to use a common adage, 'a Philadelphia lawyer' could not tell what these acts mean, nor even how much of them is in force." Another advantage pointed out was the saving of expense and this was probably the one which appealed most strongly to the members of the convention.

A census of all "white male inhabitants above the age of twenty-one years" to be taken periodically was ordered by section thirty-two of article two of the draft. At first reading this provision was amended so as to require an enumeration in 1825 "and every fifth year thereafter . . . of all the free white inhabitants." At second reading, 1820 was substituted for 1825 as the date of the first census, and the superfluous word "free"  p273 before "white" was stricken out. In this form the section became number thirty-one of the final constitution. Just why the convention chose to order a duplication of the decennial census of the United States it is difficult to understand.

Two other sections of article two dealing with elections are of special interest. Section twenty-eight gave the suffrage to "all white male inhabitants, above the age of twenty-one years, having resided in the state six months next preceding the election"; the second provided that "all votes shall be given vive voce until altered by the legislature." Opposition to viva voce voting on the part of "Agis" has already been noted and the adoption of this section was followed by appeals to the legislature to change the system to voting by ballot — appeals which were heeded at the second session of the first general assembly in 1819. The provision allowing "inhabitants" to vote regardless of whether or not they were citizens may have been a result of thoughtless copying of the Ohio constitution. Indiana two years before had limited the franchise to citizens, probably as a result of the increase in the number of foreign-born inhabitants in the 14 years which had passed since the Ohio constitution was drawn up. Aliens had been allowed to vote and even to hold office in Illinois during the territorial period and it is possible that the convention deliberately decided to continue the practice. The adoption of this section stored up trouble for the future, and called forth the following request from a critic of the convention: "We would wish every member of the late convention of Illinois to declare publicly in some newspaper printed in the state whether it was his intention to extend the elective franchise in this state to the subjects of foreign powers who had never complied with the naturalization laws of the U. S."9

Article three of the constitution, dealing with the executive, was also copied largely from the constitution of Ohio. Sections two and three as finally adopted provided that the governor should "be chosen by the electors of the members of the general  p274 assembly," and should hold office four years but be ineligible for "more than four years in any term of eight years." He was required to be 30 years of age, a citizen of the United States for 30 years, and a resident of the state for two years preceding the elections. When the blanks were filled in at the first reading, the period during which the governor must have been a citizen was fixed at 10 years but at second reading this was lengthened to 30 years. Sections four to ten inclusive, giving to the governor the usual powers and duties, remained essentially as they were in the draft.

Section eleven of article three provided for a sheriff and a coroner in each county to be elected biennially by those "qualified to vote for members of the general assembly." The draft provided that no sheriff should be eligible for more than "four years in any term of six years," but this feature was stricken out at third reading.

The "speaker of the senate" was empowered by section thirteen of article three of the draft to exercise the powers of governor in case of a vacancy in that office, "unless the general assembly shall provide by law for the election of a governor to fill the vacancy." When the committee of five drew up its schedule, however, it embodied therein five sections copied from the Indiana constitution providing for a lieutenant governor who should be elected in the same manner and have the same qualifications as the governor, and who should be speaker of the senate. An unusual provision allowed him to debate and vote in committee of the whole, "and whenever the senate are equally divided, to give the casting vote." On motion of Mr. Kane, these sections were taken from the schedule and inserted in article three just before section thirteen. That section was then renumbered eighteen and the words "lieutenant-governor" substituted for "speaker of the senate."

Instead of giving a veto power to the governor as had been done in most other state constitutions, the draft provided in section fifteen of article three for a council made up of "the judges of the supreme court or a major part of them together with the governor," which should "revise all bills about to be passed into  p275 laws" and return those of which it disapproved, together with its objections, to the house in which they had originated. This section was copied almost verbatim from section three of the New York constitution of 1777. At first reading a substitute was adopted by which the veto power was given to the governor with the provision that bills might be passed by a two-thirds vote in spite of his objections. Between the first and second readings, however, the convention was won over to the New York system and at second reading the original section was restored with a provision allowing bills to be passed over the objections of the council of revision "by a majority of all the members elected." This was an important departure from the New York arrangement, which required a two-thirds vote and thus allowed the judges to interfere seriously with legislation. The incorporation of this system in the Illinois constitution probably reflects the feeling against the absolute veto power of the territorial governors. The suggestion doubtless came from Kane, who was a native of New York and must have been familiar with its constitution.

The last section of article three of the draft directed the governor to "nominate and by and with the advice and consent of the senate appoint a secretary of state." It was accepted without a change by the convention, and at the close of the third reading, two other sections, twenty-one and twenty-two, were added, providing for additional officers. The state treasurer and public printer were to be elected biennially by joint vote of both houses of the legislature. All other officers whose appointments were not otherwise provided for were to be appointed by the governor, except that "inferior officers whose jurisdiction may be confined within the limits of the county, shall be appointed in such manner as the general assembly shall prescribe. With the exception of the provision for a public printer, all these sections were copied from the Kentucky constitution. The general appointive power granted to the governor by section twenty-two was largely nullified by section ten of the schedule, which, as amended and adopted the following day, provided that: "An auditor of public accounts, and an attorney general and such  p276 other officers as may be necessary may be appointed by the general assembly, whose duties may be regulated by law." The effect of this provision was to allow the legislature to play fast and loose with the appointive power of the governor. The explanation, according to Governor Ford, is that "the Convention wished to have Elijah C. Berry for the first auditor of public accounts, but it was believed that Governor Bond [whose election was assured] would not appoint him to office."10

The subject of the judiciary had been so extensively discussed during the territorial period that the committee of 15 apparently felt competent to draft article four dealing with it without reference to other state constitutions. The judicial power was vested in a supreme court and such inferior courts as the legislature might establish. The supreme court, consisting of a chief justice and three associate justices,​11 was to have appellate jurisdiction only, except in certain special cases. All justices and judges were to be appointed by joint ballot of the two houses of the legislature. The first appointees were to hold office during good behavior until the end of the first legislative session begun in 1824, and until that time the supreme court judges were to "hold circuit courts in the several counties." After that period the justices were to "be commissioned during good behavior" and were not to "hold circuit courts unless required by law." The provision for new elections by the legislature of 1824 was doubtless inserted in order that advantage might be taken of "any accession of talent" during the interval.​12 The salaries of justices during the temporary appointment were first fixed at $1,250 and then reduced to $1,000. For the later permanent appointments, all the judges were to "have adequate and competent salaries." Apart from the question of salaries the only change made by the convention in the article on the judiciary was in the last section. This provided in the draft that the governor should "nominate, and by and with the advice  p277 and consent of the senate, appoint a competent number of justices of the peace in each county." At the third reading, however, the section was stricken out and a substitute was finally adopted providing for the election of justices of the peace in each county. Four days later, August 24, this action was reconsidered, "on the motion of mr. Kane," and another substitute was adopted arranging for the justices to "be appointed in each county in such manner . . . as the general assembly may direct."

Article five dealing with the militia directed that there is should consist of "all free male able bodied persons, negroes, mulattoes and Indians excepted, resident in the state, between the ages of 18 and 45 years, except such persons as now are or hereafter may be exempted by the laws of the United States, or of this state." Persons "conscientiously scrupulous of bearing arms" were not to "be compelled to do militia duty in time of peace, provided such person or persons shall pay an equivalent for such exemption." Regimental officers and all officers below them, staff officers excepted, were to be elected by the men of their several organizations, and brigade and major generals "by the officers of their brigades and divisions respectively." This article, which was abridged from the militia article of the Indiana constitution, received only verbal changes at the hands of the convention, with the exception of the addition at the third reading of a section declaring the militia except in certain cases exempt "from arrest during their attendance at musters and elections of officers, and in going to and returning from the same."

The article of the draft which suffered the most radical changes at the hands of the convention was the sixth, dealing with slavery, and in view of the character of the campaign for members of the convention and the great importance of the issue, the consideration of this article is of special interest. The discussions of slavery in the Intelligencer had not ceased with the elections, or even with the assembling of the convention. The issue of August 12, the day on which the draft was reported, contained a long communication from "Pacificus" addressed "To the honorable members of the convention of the Illinois Territory." This writer professed to be opposed to absolute slavery  p278 but was very solicitous about the welfare of "a large and respectable portion of the inhabitants of this territory who are anxious to be permitted to live as they have hitherto done — to retain in their families those whom they have brought with them into the country, perhaps raised among their children, or purchased with their money for the purpose of relieving the toils and burdens of domestic life." After dwelling upon "the blessing of being surrounded by good and faithful servants," he proceeded to suggest "the outlines of a plan which might gratify the wishes of those who are in favor of slavery, and not materially, if at all, affect the future prosperity of our infant state." This plan contemplated the toleration of a modified form of slavery. All slaves introduced were to be registered by their owners, taught to read, and given "correct ideas of the general principles of the christian religion." Then they were to become free, males at the age of 40 and females at 35. Children of slaves and indentured servants were also to be registered and should be freed, males at 32 and females at 28. "The constitution also to declare, that from and after the first day of January, one thousand eight hundred and sixty, slavery of every kind or character should then and from thenceforth cease: — the proprietors being liable upon their bonds, that no slave at that time, infirm or over fifty years of age, should become in any manner chargeable to the public."

The members of the Illinois convention had before them the slavery provisions of two constitutions framed for states which, like Illinois, had been under the obligation of making their constitutions harmonize with the Ordinance of 1787. Section two of article eight — the bill of rights — of the Ohio constitution of 1802 reads:

The Indiana constitution of 1816 ignored the question of existing indentures and merely declared: "There shall be neither slavery nor involuntary servitude in this State, otherwise than for the punishment of crimes, whereof the party shall have been duly convicted, nor shall any indenture of any negro or mulatto, hereafter made and executed out of the bounds of this State be of any validity within the State." Both constitutions, moreover, declared that no alteration should ever be made so as to introduce slavery or involuntary servitude, the Indiana constitution stating as reason therefor that "the holding any part of the human creation in slavery or involuntary servitude can only originate in usurpation and tyranny."13

The members of the committee of 15 which framed the draft of the Illinois constitution appear to have been unwilling to leave the question of existing indentures to the courts and so they selected the provision from the Ohio constitution, leaving blanks to be filled in for the age limits. Instead of inserting the section in the bill of rights, however, it was presented as the single section of a separate article numbered six. This might be taken to indicate that the committee expected additional sections to be added by the convention. At the first reading of this article the blanks were filled as they had been in the Ohio section and "further consideration was postponed until the second reading." The first real consideration of the question took place on August 18. The issue of the Intelligencer for the nineteenth, which doubtless went to press before any action had been taken, stated that "the question of slavery is not yet decided; a majority however, are said to be opposed to it." The same issue contains also a communication which indicates the kind of argument which was being brought to bear upon the members of the convention. After lamenting the burden of taxation which would  p280 be necessary in order to carry on the state government "even upon as economical a scale as can safely be established," the writer declared: "It is thought the exclusion of slavery will annihilate a lucrative source of public revenue. I mean the United States' salines, as white men cannot be procured in sufficient numbers to convert these salines to any extensively valuable purposes."​a Undoubtedly the problem of the salines was a considerable factor in determining the convention's attitude on the slavery question.

When article six came up for second reading, on August 18, the first clause was changed to read: "Neither slavery nor involuntary servitude shall hereafter be introduced into this state"; for the words "under pretence of indenture or otherwise" were substituted "under any indenture hereafter made"; and a second section was added as follows: "nor shall any person bound to labor in any other state, be hired to labor in this state, except within the tract reserved for the salt works near Shawneetown, nor even at that place for a longer period than one year at one time; nor shall it be allowed there, after the year — any violation of this article, shall effect the emancipation of such person from his obligation to service."​14 The changes in the first section and the additional section appear to be the most significant of any of the votes on the slavery question in the convention. Those in favor of the changes were Morse of Bonds; Borough, Prickett, and Stephenson of Madison; Messinger of St. Clair; Cairns of Monroe; Fisher and Kane of Randolph; Hall and Will of Jackson; Omelveny of Pope; Harrison of Franklin; Jones, White, and Hubbard of Gallatin; and Cullom and Kitchell of Crawford — 17. Opposed to them were Kirkpatrick of Bond; Lemen of St. Clair; Bankson, the sole representative from Washington; Moore of Monroe; M'Fatridge and West of Johnson; Ferguson of Pope; Echols and Whiteaker of Union;  p281 Roberts of Franklin; Hargrave and McHenry of White; and Gard and Compton of Edwards — 14. This vote would indicate that the issue was by no means a sectional one between the northern and southern parts of the settled area.

The object of the changes in section one of the slavery article was undoubtedly to prevent the section from being interpreted in such a way as to interfere either with the so‑called "French slaves" or with the indentured servants who had been introduced during the territorial period. After the adoption of these changes, the proposed second section was accepted without a division. There were some members of the convention, however, who were not satisfied with a merely negative position on the existing indentures, and on the following day, without waiting for the third reading of the article, Leonard White of Gallatin offered an additional section declaring that "each and every person who has been bound to service by contract or indenture, in virtue of the laws of the Illinois territory, heretofore existing, and in conformity with the provisions of the same, without fraud or collusion, shall be held to a specific performance of their contracts or indentures; and such negroes and mulattoes as have been registered in conformity with the aforesaid laws, shall serve out the time appointed by such laws: — Provided however, that the descendants of such persons, negroes and mulattoes, shall become free at the age of twenty-five years." This section was adopted by the same vote as that on the amendments to section one, 17 to 14, but the alignment was not the same. Four men, Ferguson of Pope, Hargrave and McHenry of White, and Roberts of Franklin, who had opposed the changes in section one, voted for this additional section; and four others, Borough and Prickett of Madison, Cairns of Monroe, and Cullom of Crawford, who had supported the changes, opposed this section. What the motives of these men were can only be conjectured, but one of them, Prickett, had apparently experienced a change of heart, for he at once moved a reconsideration of the whole article. The motion was defeated, however, without a division.

When article six came up for third reading, the first section  p282 was adopted, apparently without protest. An attempt was made, however, to strike out the second section, permitting the hiring of slaves in the salines, but this was defeated by a vote of 10 to 21. Among the ten were three of the men who had voted for the changes in section one and against section three — Borough, Cairns, and Prickett. All four of the men who had voted against the changes in section one and for section three opposed striking out section two, as did also three who had voted on the antislavery side on each of the other propositions — Bankson of Washington, Kirkpatrick of Bond, and Moore of Monroe. The conclusion of section three was amended to read: "Provided, however, that the children thereafter born of such persons, negroes and mulattoes, shall become free; the males at the age of twenty-one years, the females at the age of eighteen years. Each and every child born of indentured parents shall be entered with the clerk of the county in which they reside, by their owners within six months after the birth of said child." The section was then adopted without a division.

The article on slavery as a whole is not easy to interpret. It would seem to have been the purpose of the convention to make Illinois ultimately a free state and to wipe out the territorial indenture system for the future, but to interfere in no way with existing property rights in slaves or indentured servants.​15 The only vestige of the indenture system left was the right to bind negroes "while in a state of perfect freedom, and on condition of a bona fide consideration" to serve for not more than one year, and such indentures were to be valid only if made within the state. The action of the convention has usually been represented as an antislavery victory but the members who are known to have favored slavery were on winning side in all three of the record votes. It has also been called a compromise between the opponents and the advocates of slavery but it would probably be more accurate to consider it a victory for those who  p283 occupied middle ground on the subject. The solution may well have embodied the views of a majority of the convention and also of a majority of the people of the state as well. On the other hand the possibility of the refusal of Congress to admit the state if the constitution should lean too strongly toward the proslavery side was doubtless kept in mind. In this connection it should be noted that the section on amendment contained no prohibition of a change in the constitution to allow the introduction of slavery, as had been the case in the constitutions of Ohio and Indiana. This may be significant of the hopes and expectations of some of the members of the convention.

The method of amending the constitution was set forth in article seven and was copied from the Ohio constitution. It provided, in the draft, that two-thirds of the general assembly might recommend to the electors "to vote for or against a convention." If "a majority of all the citizens of the state voting for representatives" voted in the affirmative, the next legislature was to call such a convention consisting of the same number of members as there were in the general assembly, which should meet within three months after the election, "for the purpose of revising, amending or changing the constitution." At first reading, a provision was inserted requiring two-thirds of all the members elected to the general assembly to join in ordering the election. The last article of the constitution, number eight, was the usual bill of rights. Here again the Ohio constitution was followed in the main, with occasional preferences shown for sections in the constitutions of Kentucky, Tennessee, or Indiana. A section which appears to have been original is number twenty; it provided "that the mode of levying a tax shall be by valuation, so that every person shall pay a tax in proportion to the value of the property, he or she has in his or her possession." Possibly this section was inserted in response to the complaints of "A friend to equal justice" about the "oppressive system of taxation" in existence in the territory. Section twenty-one also dealt with a matter of vital interest at the time not only in Illinois but throughout the country and especially in the west — the subject of banking. There had been  p284 much discussion of this subject in the paper during the latter years of the territorial period, a number of banks had been chartered by the legislature, and one had actually been established.​16 The section in the draft provided "that there shall be no other banks nor monied institutions in the state, but those already provided for by law, except a state bank and its branches, which shall be established and regulated by the legislature of said state, as they may think best." The convention at first reading changed the second "shall" to "may." It is possible that one object of this section was to prevent the establishment in Illinois of a branch of the United States Bank. Section twenty-two of the draft of the bill of rights declared that "to guard against the transgressions of the high powers which we have delegated, we declare that all powers not hereby delegated, or well understood, remain with the people." After having run the gauntlet of three readings, this section, for some unknown reason, was stricken out on the recommendation of Kane's committee on revision. At the close of the third reading, two sections, numbers twenty-two and twenty-three of the final constitution, were added to article eight. These were taken from the Indiana constitution and provided for freedom of the press and of opinions and for the right to offer the truth of the charges as evidence "in proscriptions for the publication of papers investigating the official conduct of officers, or of men acting in a public capacity or where the matter published is proper for public information."

The deliberations of the convention on the schedule and on various resolutions which were ultimately incorporated in it occupied a large amount of time and are of considerable interest, but unfortunately they are difficult to follow because the reports of the committee of five were not printed in full as was the draft  p285 of the constitution proper. The principal purpose of the schedule was to provide for the transition from territorial to state government. Thus it directed that the governor and all other territorial officers should continue to exercise their functions until superseded, and that all suits should be continued "as if no change had taken place." One of the sections which was evidently the subject of dispute in the convention was number twelve, dealing with the qualifications of voters at the first election. Section twenty-seven of article two, as has been noted, restricted the franchise to those who had "resided in the State six months next preceding the election." The schedule reported by the committee apparently proposed no modification of this for the first election, but on August 21, Borough of Madison offered a resolution to extend the right to vote on that occasion to all those "who are actually residing in the state at the time." This resolution received its second reading the following day and was then rejected by a vote of 3 to 28. It is significant that the affirmative votes were cast by the three delegates from Madison, the county which was growing most rapidly and was thus most interested in the proposed concession. Three days later Borough made another attempt with a resolution extending the franchise at the first election to those "who shall be actual residents of this state at the signing of this constitution," a three weeks' residence. The Madison County delegation must have won over many of the members to their views in the interval, for this resolution was carried by vote of 18 to 12. The affirmative votes were cast, in the main, by the representatives from those counties in which the population was increasing most rapidly.

The question of apportioning members of the legislature until the first state census should be taken was the subject of the first report of the committee of five, presented August 15; it ultimately became section eight of the schedule. This provided for 14 senators and 26 representatives specifically assigned to the different counties. One senator was allowed to each of the counties except Johnson and Jackson, which were to form a single senatorial district. An analysis of the apportionment of  p286 representatives, however, shows that it was based on the returns of the census just taken. One representative only was given to each county having less than 2,000 inhabitants, two to each having between 2,000 and 3,000, three to each having over 3,000. When this report was finally adopted on the eighteenth, the only change was to link Johnson County with Franklin instead of Jackson for the election of a senator. This was a logical change as Franklin, next to Johnson, had the smallest population and, moreover, was contiguous to Johnson, whereas Jackson was not. The schedule contained also four sections of a miscellaneous character, which might more logically have been incorporated in the constitution proper. Another, section fourteen, also nullified one of the provisions of the constitution proper — the provision requiring the lieutenant governor to have the same qualifications as the governor, including citizen­ship for 30 years. The section reads "any person of thirty years of age who is a citizen of the United States and has resided within the limits of this State two years next preceding his election, shall be eligible to the office of lieutenant-governor; anything in the thirteenth section of the third article of this constitution contained to the contrary notwithstanding."​17 Governor Ford's explanation of this section, doubtless correct, is that "Col. Pierre Menard, a Frenchman, and an old settler in the country, was generally looked to to fill the office of lieutenant governor; but . . . he had not been naturalized until a year or so before."​18 The legal complications which might have arisen, had Menard been called upon to fill the governor's office, would be an interesting subject for speculation.

Section four of the schedule determined the form of county government, which had been subject to frequent change during the territorial period;​19 it directed that "there shall be elected  p287 in each county three county commissioners for the purpose of transacting all county business, whose time of service, power, and duties shall be regulated and defined by law." Section eleven made it obligatory upon the legislature "to enact such laws as may be necessary and proper to prevent the practice of duelling." This was proposed by Mr. Cairns in the form of a resolution on August 20 and later was incorporated in the schedule. Earlier in the same day Cairns had proposed another resolution directing the legislature to pass laws permitting the decision of differences by arbitrators. The settlement of all civil disputes in this manner had been advocated in one of the communications published in the Intelligencer before the convention assembled, but the resolution was rejected without a division. In this connection it is interesting to note that the first general assembly not only complied with the direction of the convention by passing a stringent law to prevent dueling, but also enacted another law "authorizing and regulating Arbitrations."20

The subject of the location of the capital of the state, which was dealt with in section thirteen of the schedule as finally adopted, occupied a large amount of the convention's time and was more bitterly contested than any other question, excepting that of slavery.​b The decision of the question was no necessary part of the convention's work and might well have been left to the future. As has been noted, the memorial asking for statehood failed to request, and the enabling act failed to grant, land for a capital site, and there is no evidence that the question was raised at all during the convention campaign. A writer well versed in the traditions which have come down from that period of Illinois history claims that "there was no demand for that change at that time by the people, or by any public exigency. It was premature and unnecessary, and was concocted and consummated by a lot of speculators who expected to reap large  p288 profits in building up the new capital."​21 The question appears to have come up as a result of "sundry propositions in writing, offering donations to the state of land &c. from the proprietors of Pope's bluff, Hill's ferry, and Covington."​22 These places were all situated on the Kaskaskia River and north of the base line of the government surveys. No attempt was made in the convention to remove the capital to any other specific place, although the proprietors of other towns undoubtedly entertained or had entertained designs upon it. An example is Ripley, situated in Bond County on Shoal Creek, a branch of the Kaskaskia, which had been advertising its advantages in the Intelligencer. Among the attractions enumerated was this: "Its central and eligible situation in the territory gives rise to a strong presumption, that it will at no distant period become the seat of government."​23 Ripley appears to have withdrawn in favor of Hill's Ferry, for one of the men connected with the speculation was Abraham Prickett, the member of the convention who proposed that Hill's Ferry be selected as the capital site.

Of the three towns presenting proposals, only one which apparently had any population at the time was Covington, the county seat of the recently organized Washington County. Since May a prospective sale of town lots had been advertised by the proprietors, who called attention especially to the situation of the town

With the issue of the Intelligencer of July 29, the advertisement  p289 announced that an auction of town lots would begin the fourth Monday in September. No mention was made, however, of any possibility that the town might be selected for the state capital.

Hill's Ferry was located where the Vincennes road crossed the Kaskaskia River in what is now Clinton County — the site of the present town of Carlyle. In 1818, the log cabin of the man who kept the ferry is said to have been the only house on the site. The desirability of the location had been recognized, however, and the land on both sides of the river had been entered by non-resident speculators. In 1816 Charles Slade bought from John Hill the quarter section on which the ferry was located and before 1818 he entered the remainder of that section and a large part of the adjoining one. Not until September was the place advertised under the name Carlyle. Then its attractions were set forth as follows:

Pope's Bluff was still farther north on the Kaskaskia River, in the southwestern part of Bond County. The southern half of the section was entered in 1816 by Nathaniel Pope, and just two days after the site was proposed for the capital in the convention, sections thirteen and fourteen and the remainder of section fifteen were entered by the firm of "Pope, Messengerº and Stephenson." The motion to accept the propositions of the proprietors  p290 of Pope's Bluff came from Leonard White, who, though a representative from Gallatin County, was in close touch with these members of the Edwards faction. The place was not advertised in the Intelligencer either before or after the convention.

The offers of land from the proprietors of each of these three places were laid before the convention by the committee of five on Tuesday, August 18. At the opening of the session on Thursday, it was resolved, on motion of Mr. Kitchell, "that it is expedient at this time to remove the seat of government from the town of Kaskaskia." Mr. Gard of Edwards County at once offered a resolution for the appointment of a committee of five "to view the sites on the Kaskaskia river, above the base line, and report . . . to the next general assembly." The convention had no intention of leaving the decision to the legislature, however, and the resolution was voted down. Bankson of Washington then offered a resolution for the location of the capital at Covington but that also was rejected. Then Kane proposed, with no more success, "that the seat of government be located at the town of Kaskaskia for five years." After resolutions in favor of Pope's Bluff and Hill's Ferry had been offered and rejected, Kane tried again with a resolution "that the seat of government be located for four years at the town of Kaskaskia, after which time, the general assembly shall have power to remove the same." This was also rejected, as was another resolution, proposed by Hubbard, for the appointment of commissioners "to examine the geographical situation of the state, taking into view the population thereof, and the eligibility of the most prominent, and as they may conceive the most convenient places and report the same to the next session of the general assembly, who may either reject the whole or select some one from among the places reported, for the seat of government for this state." It seemed to be impossible to reach an agreement and the convention, in desperation, postponed further consideration of the question.

The next day, Friday the twenty-first, Gard offered a resolution evidently designed to take the whole question of the location  p291 of the capital out of the field of private speculation. He proposed to make it

This resolution was carried by a vote of 18 to 13, and on Saturday it passed a second reading without a division. At third reading on Monday Gard offered a substitute elaborating some of the details and directing that Congress be requested either to grant the land to the state or to allow it the right of pre-emption. White then moved to strike out all except the first sentence of the substitute, which read: "The seat of government for the State shall be at Kaskaskia until the general assembly shall otherwise provide." This would have given the speculators another chance before the legislature, but the motion was lost by vote of 15 to 16, "the president refusing to vote in the affirmative." Kane then moved to amend the substitute so as to make the proposed site the seat of government for 20 years, instead of permanently, and this was carried by vote of 25 to 6, after which the substitute was adopted and incorporated in the schedule without a division.

The reason for requiring the proposed site of the capital to be located east of the meridian seems to have been to get it on unsurveyed and unentered lands so that the state instead of individuals might reap the profits from the sale of lots. Such a location would be far from the settled parts of the state for some time, however, and it is not strange that the scheme called forth protests. One of these took the form of a remonstrance counter to the petition which the first legislature sent to Congress in conformity with the instructions of the convention. This declared that

The contest in the convention over the location of the capital is the only one in which the territorial factions appear to have played a part. An examination of the votes does not show, as might have been expected, an alignment of the northern against the southern counties. It shows, on the other hand, such men as White, Stephenson, and Messinger, recognized members of the Edwards faction, working together to promote a scheme for land speculation, in which they were defeated by the votes of such men as Kane, Thomas, and Jones, well-known opponents of the Edwards group. The contest, moreover, illustrates clearly the fact that the leaders of one of these factions at least were bound to each other by business as well as by political ties.

When the first constitutional convention of Illinois completed its work on August 26, 1818, it had been in session 21 days. Nine days had passed before the draft of the constitution was available for consideration. In the 12 remaining days much time was devoted to a question which did not concern the frame of government, yet in that short period the representatives of the people of Illinois discussed and determined the varied features of the instrument which was to be the fundamental basis of the government of the state for 30 years. It was not customary at that time to submit constitutions to a vote of the people and no suggestion of such a procedure appears to have been made. On the whole, however, the people were probably satisfied with the work of the convention. The inhabitants of Kaskaskia indicated their approval by a celebration  p293 which the Intelligencer of September 2 described as follows:

The Author's Notes:

1 Babcock, Memoir of Peck, 97; Washburne, Edward Coles, 44; Coles to Lippincott (n. d.), copied as a manuscript note in Lippincott's copy of his "conflict of the Century." The only copy of the "Journal" of the convention known to be in existence was presented to the secretary of state in 1905 by J. W. Kitchell, a nephew of Joseph Kitchell, one of the members of the convention from Crawford County. A page-for‑page reprint of this copy can be found in the Illinois State Historical Society, Journal, 6:355‑424. [The following narrative is based mainly on this "Journal" and on the text of the constitution. Since both are comparatively brief documents, it has not been thought necessary to give detailed citations, except in a few cases where it seemed advisable to fix the source of the quotation. — Ed.]

2 "Journal," p3, in Illinois State Historical Society, Journal, 6:355; James, Territorial Records, 55; letter of Edwards, January 18, 1818, and one with no date in Chicago Historical Society Manuscripts, 49:235, 51:484.

3 In 1819 the legislature passed "an act for the relief of persons taking additional census," which provided extra payment ranging from $5 to $30 for the commissioners of all the counties except Bond, Johnson, and Edwards. Laws of Illinois, 1819, p347.

4 On this whole discussion of the census see above, pp239‑242; compare "Journal," pp6, 7, and Flower, English Settlement, 96, 99.

5 Reynolds, My Own Times, 211; Ford, History of Illinois, 24; Brown, "Early History of Illinois," in Fergus Historical Series no. 14:86‑87; John F. Snyder is an authority for the statement that "Judge Breese, who was then a law student in Elias K. Kane's office in Kaskaskia, said the Constitution . . . was written in Mr. Kane's office some time before the meeting of the convention." Illinois State Historical Society, Transactions 1905, p360n. Breese did not arrive in Illinois, however, until several months later. Samuel Breese to Kane, October 20, 1818, in Chicago Historical Society Manuscripts, 52:33; Moses, Illinois, 1:455.

6 "Journal," p13, in Illinois State Historical Society, Journal, 6:365.

7 Ford, History of Illinois, 235; "Journal," p13, in Illinois State Historical Society, Journal, 6:365. See also p66 of the "Journal" on a similar petition, presented near the close of the session of the convention.

8 Similar sections are to be found in the New York constitution of 1777, section thirty-nine, and the Kentucky constitution of 1799, article eight, section one. Thorpe, Constitutions, 5:2637; 3:1280.

9 "Journal," p21, in Illinois State Historical Society, Journal, 6:373; Intelligencer, October 14, November 11, 1818.

10 "Journal," p63, in Illinois State Historical Society, Journal, 6:415; Ford, History of Illinois, 26.

11 The number of associate judges might be increased after 1824.

12 Intelligencer, August 26, 1818.

13 Thorpe, Constitutions, 5:2909; 2:1070, 1068.

14 An act passed by the territorial legislature on December 22, 1814, had permitted the hiring of slaves anywhere in the territory for periods not to exceed one year. Pope's Digest, 2:472.

15 The constitution did reduce the age to which children of indentured servants could be held, from 30 and 28 to 21 and 18 for males and females respectively. See Pope's Digest, 2:472.

16 "Journal," pp28, 40, 49, 60. The words added to the article on amendments do not appear in the enrolled copy of the constitution in the office of the secretary of state. They must have been stricken out shortly before the convention adjourned, and the action upon it was doubtless recorded on one of the last pages of the "Journal," which unfortunately are lacking in the only available copy. See also Dowrie, Development of Banking in Illinois, 1817‑1863, ch. 2; "Journal," pp31, 40; Intelligencer, October 28, 1818.

17 Thorpe, Constitutions, 2:985. This section must have been incorporated just at the close of the convention as there is no record of it in the only available copy of the "Journal."

18 Ford, History of Illinois, 26.

19 See ch. 7, above, pp193‑194, 196‑198.

20 Laws of Illinois, 1819, pp32, 71‑73. The former was modeled on an act passed by the governor and judges on April 7, 1810; the latter was copied from the Indiana code of 1807. Alvord, Laws of the Territory, 25‑27; Laws of Indiana Territory, 1807, pp175‑179; Pope's Digest, 1:122‑127; Intelligencer, July 10, 1818.

21 Snyder, Adam W. Snyder, 39‑40.

22 "Journal," p51, in Illinois State Historical Society, Journal, 6:403.

23 Intelligencer, June 3, 1818.

24 History of Marion and Clinton Counties, 52, 174; land records, auditor's office, Springfield; Intelligencer, September 9, 1818.

25 House Files, December 9, 1818.

Thayer's Notes:

a If for "Negro slaves" we substitute "illegal aliens" it will be seen that the question is still very much of topical interest in the 21c; and, as far as I know, has never been solved, not only in the United States, but anywhere else either: the fundamental problem is how to create a comfortable life for the majority of the inhabitants of a country without relying on a more or less institutionalized underclass to do it — who of course, won't be quite so comfortable. More generally, the same principle is at work in paying for the social security entitlements for one group by increasing burdens on another. Not only are such systems (whether they rely on some form of coercion or, like today, on a pyramid scheme) inherently unfair but they are also unstable, and ultimately dangerous to the entire society, as the United States found out in 1861.

b This should be no surprise: exactly the same passion had been evidenced at the Federal level in the debates of the first U. S. Congress in 1790 (H. J. Ford, Washington and His Colleagues, pp71‑72).

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