CHAPTER XLIV.

CONSTITUTIONAL CONVENTION OF 1847, AND SOMETHING OF THE ORGANIC LAW FRAMED BY IT.

and

After the violent political struggle of 1824 concerning the admission of slavery into the State, the question of calling a convention to revise or amend the first constitution was not again revived for a period of 18 years. At this time such was the hight of partisan feeling aroused against the supreme court in deciding the McClernand-Field case against the wishes of the dominant party, the unnecessary apprehension that the Galena alien case would also be decided against the wishes and interests of the democracy, involving a possible loss of its political supremacy in the State, that the legislature, at its session of 1840-1, passed a resolution recommending to the electors at the general election of 1842 to Vote for or against the calling of a constitutional convention. But in the meantime the judiciary was reorganized by the addition of five judges to the supreme court, all democrats, to overbalance the whig judges. The democracy having by this act secured their political supremacy in every branch of the government, had no further use for a convention to remodel the constitution, and at the August election the resolution failed to carry, though the whig party, against whom it was originally aimed, ardently supported the call.

Still the insufficient limitations of the old constitution became more apparent from year to year, and in 1845 the legislature again passed a resolution recommending to the electors to vote for or against a constitutional convention at the ensuing general election of August, 1846. The democratic press this time urged the people to vote for the call of the convention, publishing the resolution to be voted for as a standing advertisement and part of the regular democratic ticket; but the whig press, if not opposed to the call, deeming, perhaps, that its espousal of the question might tend to defeat it, was totally silent upon the subject, and did not once direct the attention of the people to the importance of the measure. Being thus a democratic measure, the call prevailed.

In the passage of the act to provide for the meeting of the convention, the main question over which there was any considerable Contest, was whether it should consist of as many members of the then general assembly, apportioned upon the population of 1840 (476,183), or whether the number should correspond to the new apportionment act of that session, based upon the census of 1845 (662,125). The contest was between the north and south parts of the State; the former, which had been benefited most by the immi

gration of the preceding years, was in favor of a representation based upon the census of 1845. The constitution reads: "The general assembly shall, at the next session, call a convention to consist of as many members as there may be in the general assem bly." Mr. Dougherty, since lieutenant governor, introduced a bill fixing the number of delegates to correspond with the number of members of the then two houses, and Mr. N. B. Judd, of Cook, of fered a substitute based upon the census of 1845, which finally prevailed and became a law.

A special election of delegates was fixed for the 3d Monday of April, 1847, who were to meet in convention at Springfield on the first Monday of June following. During the canvass the whig press in the strong democratic districts argued plausibly and truly that for a duty so important as the framing of a new organic law for the State, which was to affect not only the present but perhaps future generations, when present political questions might be classed with the things that were, the ablest talent of the State should be called upon, irrespective of party predelictions; but at the same time good care was taken by them to bring out and support none but their own partisans. The democratic press, having the utmost faith in the permanency and well-being of democratic principles, came squarely out and urged its party to rally as one man and secure such a majority in the convention as would insure the infusion of pure democratic principles into the instrument which was to be the guide for future legislation; to attain which care should be taken to select candidates whose democracy was unimpeachable. The election resulted in a return of a greater proportion of whig delegates than was to be expected from the rela tive strength of the two parties, although the democracy had a considerable majority.

The democracy required the convention, as paramount to all other considerations, 1st, to abolish all life offices or long tenures, and to provide for an elective judiciary, from the supreme court down; 2d, to prohibit the legislature from ever again creating a bank-all the financial evils which had ever afflicted the people of Illinois, it was charged, had proceeded from the oppressions of banks; 3d, to limit the power of the legislature to borrow money, which had been another great source of calamity to the people. This power should be so limited as to prevent the legislature from pledging the credit and faith of the State in all cases except, perhaps, in great emergencies, as of threatened danger from invasion, and then only to defray the expenses of the State government. If such a provision had been embodied in the constitution of 1818 the financial embarrassments growing out of the reckless internal improvement system of the State would not have oppressed the peo ple. It required, 4th, a veto power to the governor equal to that of the president of the United States. The veto power, notwithstanding the terrible ordeal of its denunciation, had been a favorite democratic measure ever since Jackson had saved the country, as it was supposed, by refusing his assent to the re-charter of the U. S. Bank. Of course the democracy were opposed to any change in the qualifications of an alien elector.

The whigs wanted, 1st, a longer residence than 6 months before any man should be entitled to exercise the elective franchise, and that no alien should be entitled to that sacred privilege of an

เ

j

American citizen until he was first naturalized; 2d, to take from the legislature the power of electing or appointing officers for the people, particularly as it regarded the members of that body, and thereby prevent that bargaining and corruption which grew up in the general assembly, and to prevent that body from exercising nearly all the powers of government, executive as well as legisla tive; 3d, to limit the number of representatives in the general assembly, and to fix the age at which men should be eligible to seats in that body, and thus prevent the many mischiefs growing out of legislation by young men whose minds were immature; 4th, to fix the ages at which men might hold the office of judge, and at which judges should retire from the bench; 5th, to prevent a majority of the two-thirds which constituted a quorum in the legisla ture from finally passing a bill.

There were also many provisions mooted by the press and people, upon which there was no political or party division. The most important and generally demanded were retrenchment and economy; to disconnect the supreme judges from legislative duty as a council of revision; to abolish eligibility to several offices at the same time; to limit the power of the legislature in contracting debts and imposing taxes; to organize a more efficient tribunal for the management and control of county affairs than the county commissioner's court; to limit the powers of govern ment so as to secure the people against oppression by those in authority, (in view of what was done during the hard times of 1842, when the officials of the executive department required that nothing but gold and silver should be paid for taxes, while there was nothing but depreciated bank rags in the country, the State having made the issues of the State bank receivable for taxes); to provide against successive special sessions of the legislature at the will and pleasure of the governor without specifying the character of the business to be transacted; to fix the pay of members, and to devise some way to prevent an accidental majority from continuing or adjourning sessions for the sake of compensation. Among the democratic delegates there was not entire unanimity upon the bank question. The following is one of the bolts launched at the recussants by the press of that party:

"These bank-democrats occupy rather paradoxical ground. They assert that banks are pernicious, dangerous and anti-republican, but inasmuch as the bank paper of other States naturally circulates among us, it is our true policy to establish these engines of evil as a measure of self-defense. They admit that we are injured by the paper of other States, and they propose to mitigate the injury by producing it themselves-if any mischief is to be done, the citizens of the State ought to have the privilege and enjoy the profits of doing it. If other States choose to injure us, we ought to seek redress by injuring ourselves."'*

The convention met on the 7th of June, 1847, and concluded its labors on the 31st of August following. When its work first came before the people (for unlike the constitution of 1818, this was to be passed upon by them), nobody seemed entirely satisfied with it, yet all concurred that the new was preferable to the old constitution. Judging it from the partisan stand-point of that day, it must be confessed that the the greater success in grafting it with their peculiar views was with the whigs. The old allowed

*Ill. State Reg.

aliens and citizens alike to vote after a residence of 6 months, to maintain which feature when supposed to be in danger in 1840, the democracy waged a fierce warfare against the supreme court, resulting in a partisan reorganization. Yet the very thing feared from that court was now embodied in the constitution; every elector must first be a citizen, and second have a residence of one year in the State. The elective principle by the people was extended to the filling of every office, a thoroughly democratic provision, and the only one which ought ever to obtain under any republican government. Yet the democracy, for obvious party reasons, desired to confine this to the life offices-the supreme judges-leaving the great bulk of the offices to be doled out, if not bargained, as before by the legislature, and thus fasten their incumbents upon every county in the State, regardless of local polit ical majorities. For like party reasons the whigs desired to deprive the dominant party of the power to elect this great crowd of officers-judges and clerks, both circuit and county-to the legislature, but favored life officers for the supreme bench. In this particular, fortunately for the State, the partisan cravings of both, to a certain extent, were defeated, yet the deprivation of the power to elect all the host of the former by the legislature was a greater loss to the democracy than the latter was to the whigs. This took from the legislature a fertile source of patronage by depriving it of the choice of some 200 county officers from time to time, who by their intimate relations to the people are in the situation to exercise a most potent political influence. During the pendency af the constitution before the people, the provision relating to 3 county judges, called the "puppy court," was made to do peculiar service against it. Upon the subject of banks, too, the democracy may be said to have been in a manner defeated. The democratic convention of February, 1846, the largest ever assembled in the State, had declared that the creation of any new banks, either State or other banking institution whatever, should be frowned upon by the party; and throughout the sitting of the convention the press of that party was strenuous in its opposition to banks of any kind. Yet banks, other than State banks, were not prohibited by the constitution, though a general banking law was required to be submitted to a vote of the people.

We note but a few features wherein the constitution of 1848 differed from that of 1818. Profiting by the lesson of experience taught by the State internal improvement system, whose enormous debt was then pressing heavily upon the people, no debt was allowed to be contracted by the legislature exceeding $50,000, and that only to meet casual deficits or failures in revenue; nor was the credit of the State to be extended to any individual, associa tion or corporation. Article 14, separately submitted, provided for the yearly collection of a tax of 2 mills upon the dollar, in addition to all other taxes, the proceeds of which were to be paid out in extinguishment of the public debt, other than the canal and school indebtedness, pro rata to such holders as might present their evidences. This was a noble self-subjection of the people to a tax for an indefinite time at that dark period of public and private embarrassment, for which we ought to profoundly honor them.

Regarding tax titles, the law of 1839 was one of peculiar hardship, rendering their defeasance most difficult by throwing the onus probandi as to any irregularity in the manner of acquiring them upon the real owners of the land. A deed was prima facie evidence that the land was subject to taxation; that the taxes were unpaid; that the lands were unredeemed; that it had been legally advertized; that it was sold for taxes; that the grantee was the purchaser; and that the sale was conducted in the manner required by law.* It was possible for a man to lose the title to his land, although residing on it and having paid his taxes. All this was radically changed by section 4, article 9 of the new constitution, introduced by Judge Lockwood, the requirements of which the courts have construed strictly, and it may well be inferred that since then not many tax titles have stood this ordeal of the organic law.

The legislature was required to encourage internal improvements by passing liberal general laws of incorporation and for other corporate purposes; special acts for which were not to be granted unless the objects could not be attained under the former. It seems that in the legislatures since scarcely any corporate objects could be attained under general laws, for throughout the sway of the constitution of 1848, were not only no general incorporation laws of any degree of perfection passed, but from session to session were granted, with most lavish hand, private and special acts of incorporation for every conceivable purpose, passed in packages of hundreds at a time, making huge tomes, whose contents and provisions were equally unknown to the general public and the honorable members whose names stand recorded in favor of their enactment. This species of legislation, in many cases, has been attended with the most pernicious results, as the people to their cost can testify.

The judges of the supreme and circuit courts were made ineligi ble to any other office of profit or public trust in this State or the United States during the terms for which they were elected, and for one year thereafter. This clause, as it reads, has been repeatedly violated by the election of judges to congress; and while it is true that body has held that it is the sole judge of the qualification of its members, and that State laws or constitutions in such cases are of no binding force, it is equally true that the gentlemen thus elected had sworn upon their installation as judges to observe the constitution of Illinois in all its provisions, without any reservation as to the clause in question, or they could not have taken their seats upon the bench.

In the legislature bills were to be read on three different days before becoming laws, and on final passage the ayes and noes were to be recorded. This well intended provision was most shamefully violated in actual practice in after years by a reading of the title of a bill only, and by the so-called "omnibus " system, by which hundreds of bills-many providing for private jobs and corrupt schemes-were passed at once, few of the members knowing their contents. The reading of bills the first and second time by their title only gave rise to the reprehensible practice of introducing

"Blackwell Tax. Tit. 84.

+It seems that the Hon. J. Y. Scammon, of Cook, first suggested the passage of bills by the package.