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II 
 
 THE ORIGIN AND DEVELOPMENT OF THE BILL OF RIGHTS 
 IN THE CONSTITUTION OF ILLINOIS 
 
 BY ' ' 
 
 HERMAN GERLACH JAMES 
 
 A. B. University of Illinois, 1906 
 J. D. University of Chicago, 1909 
 
 THESIS 
 
 Submitted in Partial Fulfillment of the Requirements for the 
 
 Degree of 
 
 MASTER OF ARTS 
 
 IN POLITICAL SCIENCE 
 
 IN 
 
 THE GRADUATE SCHOOL 
 
 OF THE 
 
 UNIVERSITY OF ILLINOIS 
 
 19102 
 
UNIVERSITY OF ILLINOIS 
 
 THE GRADUATE SCHOOL 
 
 1 HEREBY RECOMMEND THAT THE THESIS PREPARED UNDER MY SUPERVISION BY 
 
 ENTITLED 
 
 BE ACCEPTED AS FULFILLING THIS PART OF THE REQUIREMENTS FOR THE 
 
 DEGREE OF 
 
 // ' In Charge of Major Work 
 
 Head of Department 
 
 Recommendation concurred in: 
 
 Committee 
 on 
 
 Final Examination 
 
 167540 
 
UiUC 
 
The conutitut iona"'- practice of embodying in the fundamental 
 law of a state a declaration of the rights and liberties of the 
 individuals in that state, a practice so familiar to us living 
 under the constitutions of the United States as to be re£p.rded 
 almost as a matter of course, is distinctively American in 
 origin, and had its genesis less than a century and a half ago. 
 The famous Virginia Bill of Rights drawn up by George Mason and 
 adopted on June 13, 1776 by a convention of members of the old 
 Virginia House of Bicrgesses was the first embodiment of the 
 principle that certain rights of the individual are so sacred 
 that their inviolability should be secured in the^highest 
 expression of the sovereign will of the people. 
 
 The exajaple of Virginia in thus formally declaring certain 
 
 rights and liberties of the people to pertain to them and their 
 
 posterity as the basis and foundation of government was followed 
 
 in every one of the eleven states which adopted constitutions 
 
 follov/ing the resolution of the Continental Congress in May 
 
 (2) 
 
 1776 advising such action on the part of the colonies. 
 
 Never had the belief in the existence of inviolable personal 
 rights been so general as in the century preceding the American 
 Revolution, and nowhere had this doctrine received wider recog- 
 nition than among the American colonists. The principle of 
 
 (1) Scherger "The Evoltition of Modern Liberty." Cap ♦VIII . 
 
 (2) Thorpe "Araerican Charters, Constitutions and Organic 
 Laws . " 
 
-3- ^ 
 
 individual liberty, religious, political and personal, wao 30 
 fundamental in the political thought of that time and place that 
 the idea of guaranteeing this freedom by declaring it in the 
 basic lav7 of the government met with immediate and universal 
 approval and acceptance, not only in the subsequent state con- 
 stitutions, and the federal constitution in this country, but in 
 
 (1) 
 
 the constitutions of other countries ao well. 
 
 To say that the idea of constituting these fundamental rights 
 
 a part of the basis of government originated in the American 
 
 colonies in 1776, is not to say that the belief in the existence 
 
 of such rights originated then and there. The consciousness of 
 
 the existence of such rights, and even the formal declaration of 
 
 their nature and extent began centuries before, and extended 
 
 through a period during which the constitutional principles and 
 
 political philosophy from which these rights and liberties were 
 
 evolved and developed, underwent many radical changes. 
 
 The doctrine of individual rights free from interferences 
 
 or even destruction by the state was unknown to the political 
 
 philosophy of the Greeks and Romans, to v;hom the state was 
 
 absolutely sovereign. Nor does this principle find recognition 
 
 among the Romans or even in the middle ages, which knew individual 
 
 rights only in the shape of contractual relations arising out of 
 
 (2) 
 
 an interest in the soil. But in England certain customs and 
 
 (1) ^The French Declaration of the Rights of Man 1T93. 
 
 (2) Stubbs "Select Charters Illustrative of English Consti tutiong L 
 History." p. 396. 
 
-3- 
 
 rules of the common law had from earliest timea afforded some 
 
 measure of protection for individuals aa regarded their personal 
 
 liberty and security, and the violation and destruction of such 
 
 liberty and security at the handa of the king arouoed that protea" 
 
 and resistance which finally culminated in the first formal 
 
 recognition of the rights of English subjects, the Great Charter 
 
 of King John in 1315. 
 
 In this^the earliest charter of liberties, is found the 
 
 model for many of the provisions of the Virginia Bill of Rights, 
 
 the prototype of all the others. The prohibition on excessive 
 
 fines and on cruel and unusual punishments is directly traceable 
 
 to Cap* 30 of the Great Charter; unreasonable seizure is 
 
 forbidden in effect in cap* 38; i:7hile the protection of trial 
 
 according to the la'v of the land was virtually embodied in 
 
 cap. 59. Other provisions of the Great Charter were adopted 
 
 by some Bills of Rights framed immediately after that of Virginiaj 
 
 and copied from them into their later constitutions, among which 
 
 provisions may be mentioned the as :urance of right and justice 
 
 (3) 
 
 without sale denial, or deferment, and the right of free 
 
 ' (3) 
 egress from and ingress to the country. 
 
 These several guarantees embodied in the Great Charter were 
 
 (1) Stubbs "Select Charters Illustrative of English Constitutions 
 History." p. 396 
 
 (3) Magna Chart a. cap. 40. 
 
 (3) Ibid Cap. 43. 
 
-4- 
 
 repeatedly affirmed by later kings, only to be aa repeatedly 
 violated, until again solemnly declared by the people, thia time 
 through their repreoentati ves in Parliament, in the oecond fereat 
 charter of liberties, the Petition of Right to Charles I in 1638. 
 In this document the principal ground of complaint was the 
 violation of the due process of law provisions in the Great 
 Charter and the statute 30 Edw. Ill, through the application of 
 martial law in times of peace, and the unjust quartering of 
 
 soldiers and sailors upon the subjects. 
 
 (3) 
 
 In 1679 the Habeas Corx^us Act re-affirmed another 
 
 common law right which a century later ;vas regarded as of 
 
 fundamental importance by the framers of many of our American 
 
 Bills of Rights, though not found in the Virginia constitution 
 
 of 1776. Then, finally, in 1689 the English Bill of Rights, 
 
 declared upon the accession of William and Mary, in denunciation 
 
 of the abuses of the late King James II as a warning and guide 
 
 to the new rulers, still further increased the number of 
 
 individual rights thus established in England by formal declaration 
 
 Among the additional securities provided were the fundamental 
 
 rights of petition, of bearing arms, of free elections and of 
 
 (3) 
 
 freedom of speech and debates in the legislature. 
 
 (1) Stubbs "Select Charters." p. 515. 
 (3) Ibid. p. 517. 
 (3) Ibid. p. 533. 
 
-5- 
 
 In addition to the rights thus formally eata'olished by ',he 
 series of English constitutional documents, there were certain 
 other doctrines of the comraon law which every English subject 
 regarded a^ his birthright, and v/hich seemed of sufficient impor- 
 tance to the colonists to deserve embodiment in their enumeration 
 of inviolable rights. Some of these rights had indded always 
 been kept sacred in England by the crovvn, but others had been 
 repeatedly ignored, and all were the heritage of the colonists, 
 ajid were deemed worthy of the new protection which the written 
 constitutions were meant to guarantee. 
 
 Such then^were some of the sources from which the American 
 statesmen in 1776 derived their ideas of fundamental rights, 
 ideas in no sense, therefore, newly discovered or declared at 
 that time. On the contrary they were in the language of the 
 English Bill of Rights itself, "ancient rights", to which every 
 English subject had been entitled by the course of the common 
 law and the statutes. 
 
 But the American Bills of Rights contained still other 
 declarations which had not previously been embodied in any 
 charter^or petitions, and which were not recognized by the 
 common la^, the origin of which is traceable to a different 
 source, namely, the then recent emphasis and general acceptance 
 of the theory of natural law as developed in the worke of Milton, 
 JIarrington and Locke in England, and in those of eminent writers 
 of continental Europe, during thn seventeenth century. 
 
 The theory of natural law, originated almost five centuries 
 before Christ by Heraclitus and developed in Greece by the 
 Stoics and their successor 3 , «ould come to no fruition in the 
 
birth of private ri^^ta in that period wh^n the sovereignty of 
 
 (1) 
 
 the state waa absolute. But the effect of this theory upon 
 
 the developoent of the doctrine of natural rights, two thousand 
 years later, ^hen political concepts ho.! raiically altered, 
 ira3 niost potent . 
 
 In the philosophical theory of natural law as expounded in 
 the seventeenth century was esibodied the concept of inherent, 
 natural, inalienable rights appertaining to men as men, and 
 which no governn-ent could rightly abridge or destroy. 
 
 Mere than a century before the Anierican Revolution, Milton 
 had defined the purpose of goverrjnient to be the preservation of 
 the liberty, peace and safety of the people, and had declared 
 that all men are naturally born free, and that liberty of press 
 and of conscience should be respected. Developing this theory 
 still further Locke contended that men lost none of their 
 natural rights by entering into the state of society, but 
 surrendered so inuch only of their liberty a3 was absolutely 
 necessary to establish government. 
 
 These views, chainpioned by many noted publicists of the 
 seventeenth and eighteenth centuries, vrere -^vell known to the^ 
 leaders among the Ar.erican colonists, in whose temperaments th^-;^ 
 a ready response, and -jyhose difficulties they seemed so 
 satisfactorily to solve. 
 
 (1) Scherger "The Evolution of Hodern Liberty." cap. !• 
 (3) Ibid ch. II. 
 
-7- 
 
 The Ha33achU3att8 Body of Liberties had as early aa 1641^^ 
 
 contained a statement and guarantee of many of these rights, 
 
 and a century or more later James Otis, John A'iana and Samuel 
 
 Adams, filled with enthusiasm for the doctrine of natural law 
 
 /tights," had made this captivating theory the common knowledge 
 ^ (2) 
 of the American colonists. 
 
 Inflamed with the memory of recent tyrannies and oppressions 
 
 dedicated to the terrible struggle they had just commenced in 
 
 behalf of their liberties, and conscious that even a democracy 
 
 furnishes no necessary guarantee of liberty, the colonists 
 
 almost inevitably accorded to the declaration of the nature and 
 
 purpose of government, and of the rights of liberty of conscience 
 
 speech and press so important a place in the structure of their 
 
 constitutions . 
 
 Fnen, therefore, in 1818 the framers of the first Illinois 
 constitution were confronted with the problem of drawinr; up a 
 statement of the fundamental law for the nev; commonwealth, there 
 Was nothing novel, either in the doctrine of inviolable personal 
 rights and liberties, or in the practice of guafanteeing them 
 in the constitution by express enumeration. ITot only had all 
 of the eighteen state constitutions in force when Illinois 
 became a state^^ contained such a declaration of individual 
 rights, as had also the Declaration of Independence, and the 
 federal constitution, but in France as well had this principle 
 received effective recognition in the Rights of Man prefixed 
 
 (1) Stimson "Federal and State Constitutions of the U.S." 
 Rook II . ch . I . 
 
 (2) Scherger supra ch . IX. 
 
— 8— . 
 
 (1) 
 
 to the conatitution of 1793. 
 
 Of the most immediate and determining influence, no doubt, 
 
 in shaping the Illinois Bill of Rights was the famous Northwest 
 
 Ordinance of 1787 under which, with but slight chancres, the 
 
 framers of the Illinois constitution were then living, and which 
 
 for thirty years past had been the organic law of the territory^ 
 
 now about to be formed into a state. This Ordinance contained 
 
 six articles of com.pact of which the first two constituted 
 
 virtually a Bill of Rights, which though shorter and more 
 
 concise were practically as comprehensive as mar.y of the more 
 
 (2) 
 
 verbose declarations in the existing state constitutions. 
 
 The authorship of this celebrated Ordinance seems to be a matter 
 
 of dispute, but whether it was chiefly the work of Putnam, Cutletr 
 
 Dane, or Jefferson, or, what is more probable, a combination 
 
 of the ideas of them all, it unquestionably offered a more 
 
 natural and familiar model for the framers of the first Illinois 
 
 even the 
 
 constitution, than/Virginia Bill of Rights and its copies in 
 the other states which exerted a considerable influence as 
 well. 
 
 (1) Liefer "Civil Liberty and Self Government." p. 536. 
 
 (2) Thorpe "American Charters Constituions and Organic 
 Laws." Vol . 3, p . 957. 
 
-9- 
 
 (1) 
 
 Section I 
 
 The firat section of the Bill of Rights of the conotiution 
 
 of Illinois begins by declaring men to be by nature free ani 
 
 independent and to p03se33 these inherent and inalienable rights 
 
 v;hich occupied so important a place in the political philosophy 
 
 of the seventeenth century. The constitution of 1818 had declared 
 
 that "all men are born free and independent and have certain 
 
 inherent and indefeasible rights, among which are those of 
 
 enjoying and defending life and liberty and of acquiring and 
 
 possessing and protecting property and reputation and of pursuing 
 
 their own happiness," using language very similar to that of 
 
 (3) 
 
 the Virginia Bill of Rights of 1776 and of the Declaration 
 
 (3) 
 
 of Independence in the sane year. 
 * 
 
 The assertion that all men are born equally free and inde- 
 pendent Was given further effect in this state by the prohibition 
 (4) 
 
 on slavery whereas in Vir^^inia this declaration was believed 
 
 (5) 
 
 not to apply to the negroes. Though property and reputation 
 were first included among the fundamental individual rights along 
 
 (1) All men are by nature free and independent and have certain 
 inherent and inalienable rights— among these are life, liberty 
 and the pursuit of happiness. To secure these rights and 
 the protection of property, governments are instituted ajaong 
 men, deriving their just powers from the consent of the 
 governed'^ Constitution of Illinois, 1870 Art. II Sec. I. 
 
 (2) Constitution of Virginia, 1776, Bill of Rights, sec, I 
 Thorpe, "American Charters, Constitutions and Organic Laws," 
 p .3813. 
 
 (3) Declaration of Independence .par .2 .Thorpe sup r a . p. 4. 
 
 (4) Constitution of Illinois 1818, Art .Vi, Sec. I Thorpe p980 
 
 (5) Stimson "Federal and State Constitutions of the United 
 States, p . 21 . 
 
-10- 
 
 with life, liberty and the purauit of happineiiJ by the Haooachueet b 
 
 (1) 
 
 Body of Liberties (Preamble) in 1641, this broader enumeration 
 
 Was to be found in only one otate conatitution in 1813, namely 
 
 (3) 
 
 that of Pennsylvania 1790, from v;hich the whole of this section 
 in the Illinois constitution of 1818 was taken. 
 
 The essentially American doctrine of the sovereignty of the 
 people, and the principle of the basis and purpose of government 
 were declared in the words "all power is inherent in the people 
 and all free governments are founded on their authority and 
 instituted for their peace, safety and happiness," which had 
 been stated in precisely the same terms in the constitutions of 
 Indiana, 1816 and Pennsylvania, 1790, and in very similar 
 language in a number of the other state constitutions. 
 
 In the constitution of 1848 all these provisions were adopted 
 from the first constitution without the slightest change, though 
 the original committee report included in addition an express 
 declaration of the right of the people to alter the government 
 whenever the public good requires it; a provision found in the 
 original Virginia Bill of Rights and in the Declaration of 
 Independence, and upon the apparently self evident principle of 
 which rested the theoretical justification of both the English 
 and the American Revolutions. 
 
 In the constitution of 1870 the somewhat prolix statem.ent 
 
 (1) , Stimson, supra p. 20. 
 
 (2) Art. IX Sec. I . 
 
 (3) In the proposed constitution of 1863, the convention adopted 
 the exact language of the Declaration of Independence, with 
 reference to these personal rights, addinc, however, the 
 right of acquiring, possessing and protecting property. 
 
-11- 
 
 of the earlior consti tutiona '.7aB abandoned for the concise 
 wording; of the Declar:\tion of Independence, with the addition of 
 the protection of property as one of the purposes of government. 
 A change in wording that aroused some opposition in the constitu 
 tional convention of 1869 was the unqualified declaration that all 
 men are by nature independent, in place of the modified form 
 "equally independent" contained in the former constitutions. 
 Several auggestions were made to alter this by adding qualifying 
 phrases or by striking it out altogether as being contradictory 
 to the real place of man before God and among his fellovmien, but 
 this absolute declaration of man's independence v/as retained, 
 though not found in the early constitutions, nor even in the 
 Declaration of Independence and contained in but three of the 
 thirty six other constitutions in force in 1870. 
 
 In Illinois, as has been seen, the assertion of man's 
 independence was never qualified by considerations of race or 
 color but extended in meaning, as it did in terms, to all men. 
 Liberty and property as used in the constitution have been 
 repeatedly defined by the courts in cases involving alleged 
 violations of the due process of lav/ provisions and may, ther efose, 
 best be considered in the discussion of the following section. 
 
— i. fc*. 
 
 (1) 
 
 SECTION II 
 
 Section 3 contains the prohibiten against deprivation of life, 
 
 liberty, or p-operty without due proceDi of la"^ '.vhioh has proved 
 
 to be the moat effective guarantee of individual righto as 
 
 against the government, not only as interpreted and enforced by 
 
 the state courts but also as applied b/ the federal courts 
 
 under the fourteenth amendment of the United States constitution. 
 
 The first constitution of Illinois declared that no freeman 
 
 should be imprisoned or disseized of his freehold, liberties or 
 
 privileges, or outla'ved or exiled or in any manner deprived of 
 
 his life, liberty or property but by the judgment of his peers 
 
 or the IccM of the land. This provision was virtually a copy 
 
 of chapter 59 of the Great Charter of King John of 1315 as 
 
 airi ended and affirmed by chapter 35 of the Great Charter of Henry 
 
 (3) 
 
 III, two years later, with the addition of the phrase, "'or 
 
 deprived of his life, liberty or property." 
 
 The second article of compact in the Northwest Ordinance of 
 1787 had also declared that no man should be deprived of liberty, 
 or property but by the judgment of his peers or the lav/ of the 
 land and similar provisions had been embodied in more than two 
 thirds of the state constitutions in force in 1818, though not 
 generally limited to freemen, a limitation probably retained 
 in the constitution of Illinois merely by oversight. 
 
 (l) "iTo person shall be deprived of life, liberty or property 
 without due process of law. "Constitution of Illinoi s, 1870, 
 Art. II sec. 3. 
 
 (3) Stubbs "Select Charters" pp. 301, 346. 
 
-15- 
 
 ITo chanf;e was made in the wordinr: of this section until the 
 adoption of the present constitution, when the esaence of the 
 provision was embodied in the short statcrrient of the present 
 section copied from amendments five and fourteen of the Federal 
 constitution, the latter of which had been adopted but a year 
 before the constitutional convention of 1869 met in Springfield. 
 At that time about one third of the state constitutions still 
 retained the original form, "but by the judgment of his peers", - 
 
 which meant trial by jury and "or the laws of the land" - v/hich 
 
 ' (1) 
 
 meant indictment and procedure at common law, - though a number 
 
 emplo^red its nov; famous equivalent "by due process of law". This 
 phrase appeared first in the Statute 38 Edward III, Chapter 3 
 and Was not found in any state constitutions prior to the 
 adoption of Amendment V in the constitution of the United States. 
 
 This constitutional guarantee of life, liberty and property 
 against deprivation save by due process of law has been expou:-ded 
 and applied in an enormous mass of cases in this state, as in 
 all the others, which it would be impossible to discuss in 
 detail, though a few general definitions may be helpful in 
 showing the remarkable scope of this apparently sim^ple provision. 
 
 "Liberty" as used in the constitution means not only freedom 
 from servitude and restraint, but also the right of every man to 
 be free in the use of his powers and faculties and to adopt and 
 
 (1) Stimson "Federal and State Constitutions of the 
 United States", p. 16. 
 
-14- 
 
 pursue such a vocation or cnlling a3 he iriay choose, subject only 
 
 (1) 
 
 to the restraint neceoaary to secure the conr.on v/elfare. 
 
 "Froper'-y" is not only the physical thing which may be the 
 subject of o'.mership, but al30 the right of dominion, possession 
 and po'.7er of disposition over it, and includes ac v/ell the ri ht 
 to acquire it in any lawful mode or by fol"" owing any lawful pursui||t 
 which the citizen in the exercise of the li'^erty guaranteed may 
 adopt . 
 
 The privilege of contracting is therefore both a liberty and 
 
 ■(3) 
 
 a property right within the protection of the constitution, a 
 doctrine which has caused the invalidation of a large number of 
 laws passed for the protection of laborers. A number of cases 
 deal with the question of what are "vest rights", as these 
 only are properly within the protection of this class. So for 
 
 (4) 
 
 example there is no vested right in existing rules of e-^ridence 
 
 (5) 
 
 nor to particular remedies and in general mere rights in 
 
 expectancy, as the expectancy of inheritance are not vested 
 
 (6) (7) 
 rights. Rights of action are, however, protectt)d as are 
 
 also accrued defences. 
 
 (1) Braceville Coal Company v. People 147 111. 66 (18 93^^ 
 
 (2) Ibid . 
 
 (3) Frorer v. Peopl^ 141 111. 171 (1893) 
 
 (4) Meadowcr oit v. Peop le. 165 111. 56 (1896) 
 
 (5) Smit h V. Bryan 34 111 . 364 U864) 
 
 [•o) Cooley "Constitutional Limitations." (Ed. 7) p. 512. 
 
 (7) Van Tuwa.-en v. Chicago 61 111. 31 (1871) 
 
 (8) Mc Duff ee v. Sinnott 119 111. 449 (1887) 
 
-15- 
 
 "Due proce.'33 of law" has been variously defined and varioaal 
 interpreted, but no definition can be at the aarrie time comprehen- 
 oive and accurate. It is aynonyrnous with "the law of the land" 
 and Cooley cites with approval the definition of thia latter 
 phrase siven by Webster in the jOartmouth College Case. "By the 
 "la'-v of the land" is most clearly intended the general lav/, a 
 law which hears before it condemns; '.vhich proceeds upon inquiry 
 and renders Judgment only after trial, '^he meaning is that every 
 citizen shall hold his lif e, lib-:'rty, property, and immunities 
 
 (1 
 
 under the protection of the general rules which govern society." 
 
 Very similar is the definition rriven by the Illinois Supreme 
 (3) 
 
 Court . 
 
 Without examining in detail the different applications of 
 the requirement of due process it suffices here to mention that 
 it demands the equal protection of the laws, excluding unreason- 
 able class legislation, that i s, 1 egi slati ve discrimination not 
 
 (3) 
 
 based on reasonable differences, laws tending to grant 
 
 monopoly rights and the imposition of special bmrdens and 
 
 (4) 
 
 liability without just cause. In the judicial proceedings 
 
 themselves, it makes, above all, the requirement of competent 
 
 jurisdiction in the tribunal undertaking to affect the property 
 
 (5) 
 
 rights of individuals. 
 
 (l) Cooley ^Consti tutional Limitations." p. 503. 
 (3) Millet V. People 171 111. 399 (1398) 
 (3) Ibid . 
 
 Bessette v. People 193 111. 334 (1901) 
 (5) Bickerdike v. Allen 157 111. 95 (1896) 
 
\ 
 
 \ 
 
-16- 
 
 The moat important limitationa on the individual's right to the 
 
 undisturbed enjoyr.ent of his property, bedides the right to 
 
 eminent domain, and the taxing povrer, is the ao-callecl police 
 
 power of the state. But even this pov;er can be exercised only 
 
 within the bounds necesoary to pi^tect the public health safety 
 
 and comfort, and any interference beyond ':hat violates the 
 
 (1) 
 
 guarantee of due process of law. 
 
 (2) 
 
 Section III 
 
 Liberty of conscience and freedom of religious worship were 
 of course regarded by the American colonists as one of the most 
 essential of the inherent, inalianable rights of men, and the 
 religious persecutions in their mother country had profoundly 
 convinced them of the need of guar-^nt eeing this right against 
 governmental interference. Accordingly there is found in the 
 first constitutional declaration of man's rights viz., the 
 Virginia Bill of Rights of 1776, a guarantee of religious freedom 
 
 (1) Ruhstrat v. People 185 111, 133 (1900) 
 
 (3) "The free exercise and enjoyment of religious profession 
 
 and worship, without discrimination shall forever be guaranteed; 
 and no person shall be denied any civil or political right, 
 privilege or capacity on account of his religious opinions; 
 but the liberty of conscience hereby secured shall not be 
 construed to dispense with oaths or affirmations, excuse acts 
 of licentiousness or justify practices inconsistent with the 
 peace or safety of the state. No person shall be required to 
 attend or support any ministry or place of worship agai;^his 
 consent, nor shall any preference be given by law to any religiou 
 denomination or mode of worship." 
 
 Constitution of Illinois, 1870. Art. II Sec. 3. 
 
.1 
 
 1 
 
-17 - 
 
 notwithstanding that the' Anglican chur'ch v;aa then the established 
 
 ohurch of that comnonweal th . Similar guarantee3 of the liberty 
 
 of conscience and religiouo worahip -vere inserted into all the 
 
 subsequent constitutions adopted before Illinois became a 
 (1) 
 
 state, - with the single exception of Louisiana 1812, in 
 
 which state the prevailing religion wa^ that of the Roman 
 
 (2) 
 
 Catholic Church ~ and the first article of cor.ipact of the. 
 
 Northwest Ordinance declared that no person demeaning ^imself 
 
 in a peaceable and orderly manner should ever be molested on 
 
 (3) 
 
 account of his mode of worship or religious senti^ients. 
 
 In the first constitution of Illinois, the guarantee of 
 liberty of conscience and religion contained detailed provisions 
 taken from a number of different constitutions, relative to 
 the natural and indefeasible right to worship according to the 
 diet ate 3 of one's own conscience and the freedom from control 
 in that respect by any human authority; immunity from taxation 
 for the support of any place of worship or ministry; prohibition 
 on giving preference by law to any religious establishment or 
 mode of v/orship and a requirement that no religious test ever 
 be demanded a3 a qualification to any office in the state. 
 These provisions were all adopted ver^oatim into the constitutinn 
 of 1848, as also into the proposed constitution of 1832. In the 
 
 (1) In a number of the states, however, political equality was 
 assured to those only who professed the Protestant faith. 
 
 (2) The irrench Declaration of the Rights of Man had, however, 
 guaranteed the free exercise of religion. Rights of Han, 
 section 7. Lieber "Civil Liberty and Self Governr.ent" p. 537. 
 
 (3} Thorpe ''American Charters, Constitutions and Organic Laws," 
 2 p. 960. 
 
-18- 
 
 convention of 184B the conir.ii tt ee reported a quial if i cation on 
 the prohibiton acainot being compelled to erect or si.ipport a 
 place of worship against one's cono??nt, by the addition of the 
 words "contrary to what he has deliberately and voluntarily 
 engaged to perform." This qualifying phrase, vvhich was found 
 in a number of the other constitutions, might have pro\''ed to be 
 of considerable importance had the state courts taken the same 
 view of the language of this prohibition, that the United States 
 Supreme Court did of the prohibition of the thirteenth 
 amendment of the federal constitution by which "involuntary 
 servitude" was held to mean personal service, involuntary at 
 time of performance even though voluntarily contracted for. 
 
 The section in the present constitution v/ith reference to 
 religious freedom and liberty of conscience is even more comprs- 
 hensive than that of the former constitutions, though in 
 substance quite similar. The added provision that "no person 
 shall be denied any civil or political right, privilege or 
 capacity on account of his religious opinions" had been reported 
 out by the committee in the convention of 1348, but was omitted 
 in the section as finally adopted. It was introduced to cover 
 both the matter of competency of v/itnesses as found in the Hew 
 York constitution of 1846 as well the then existing Illinois 
 provision as to religious tests as qualifications for office, 
 omitted in the present constitution. 
 
 The express limitation of the guarantee of liberty of 
 conscience so as to exclude the requirement of oaths or 
 affirmations and the commission of acts of licentiousness or 
 practices inconei stent v;ith the peace or safety of the State 
 
-19- 
 
 wao not found in the conati tution of 1848, though the then recent 
 trouble with the Mormons would have seemed to call especially 
 for such a rroviso at that time. In the convention of 1869 
 the introduction of this proviso, then found in over one third 
 of the existing constitutions, called forth considerable 
 opposition to its adoption on the ground that the proviso was 
 
 a) 
 
 inconsistent with the preceding guarantee of religious freedom. 
 
 The last sentence of the section vix., the prohibition on 
 
 compslling attendance on or support of any ministry or place of 
 
 worship, and on giving any preference by lav; to any religious 
 
 denomination or mode of worship presents no material change from 
 
 the earlier provisions on these points. In the convention of 
 
 1869 there were presented four petitions, requesting an express 
 
 constitutional protection of the right to observe the seventh 
 
 day of the week as the Sabbath, and an additional section 
 
 exempting persons who conscientiously observe the seventh day 
 
 as the Sabbath from answering civil process on that day, was 
 
 (2) 
 
 moved and adopted, but on reconsideration was struck out. 
 
 The Illinois cases construing this section of the const i tut ioWi 
 are few in number, but some ofthe general principles to be 
 
 (1) Debates of Convention of 1869 p. 1560. 
 
 (2) Ibid, pp. 1563, 1777. 
 
-20- 
 
 g.itliered from the construction of similar provisions in other 
 
 constitutions will show how the courts have in {general viewed 
 
 the protection embodied in such provisions. The express prohi bi ti^lns 
 
 of the section guarantee not only religious toleration, but 
 
 religious ^quality. They do not, however, prohibit the author^ 
 
 ities from such solemn recognition of a superintending Providence 
 
 in public transactions and exercises as the general religious 
 
 (1) 
 
 sentiment of mankind inspires. Nor does the right of free 
 
 thinking and free speech justify blasphemy, or prevent its 
 
 punishment by the law, when uttered in a wanton manner with a 
 
 wicked and malicious disposition and not in a serious discussion 
 
 (2) 
 
 upon any controverted point in religion. Laws requiring the 
 
 observance of the Christian Sabbath are almost universally upheld 
 
 as not violating this constitutional provision, though ^ooley 
 
 (3) 
 
 questions the entire soundness of that view. 
 
 In Illinois under the present constitution the right to 
 
 testify is included among the civil rights, privileges, and 
 
 capacities which al*e protected by this section against denial 
 
 by reason of religious opinions, though under the earlier 
 
 constitutions an atheist was, in accordance with the common law 
 
 (5) 
 
 rule, incompetent as witness. The oonstitution of 1870, 
 therefore, abrogated all restrictions as to the competency of 
 
 (1) Cooley "Constitutional Limitations," p. 668. 
 
 (2) Cooley "Constitutional Limitations," p. 673. 
 
 (3) Ibid. p. 575. 
 
 (4) Ewing V. Bailey 36 111. App. 191. (1890) 
 
 (5) Central Military Tractte Railroad Comp any v. Rockfellow 17 
 111. 541 (185G) ~~ ' 
 
witneotiea on account of defect of religious belief. 
 
 (3) 
 
 Section 4 
 
 Liberty of speech and of the press, under certain limitations, 
 
 Was protected in England by the principles of the common law, 
 
 and considered essential to the nature of a free state. But in 
 
 England, for years before the American Revolution, there had 
 
 been serious invasions of this right, and in the American coloniec 
 
 (5) 
 
 there had never been any real freedom of speech or of the press. 
 
 In the seventeenth century Milton had in England championed these 
 
 liberties in his Areopar.i tica and the numerous appeals to 
 
 natural law ty James o^^'^ and John and Samuel Adams in the 
 
 American colonies all included them among the fundamental 
 
 (4) 
 
 individual rights. The Virginia Bill of Rights declared the 
 freedom of the press to be one of the great bulwarks of liberty 
 which could never be restrained, and in 1818 the federal 
 constitution and all the state constitutions but two viz., Nev; 
 Jersey, 1776 and ^ew York, 1777, contained similar provisions 
 as to freedom of the press, a number of them expressly protecting 
 also the liberty of speech. 
 
 (1) Hrouek v. People 134 111. 139, (1890) 
 
 (2) "Every person may freely speak, write and publish on all 
 subjects, being responsible for the abuse of that liberty, 
 and in all trials for libel, both civil and criminal, the 
 truth when published with good motives, and for justifiable 
 ends shall be a sufficient defence . "Gonsti tution of Illinois 
 1870, Art. II Sec 4. 
 
 (3) White "The constitution of Pennsylvania," Cap.V. 
 
 (4) Scherger "Evolution of Modern Liberty" Cap. IX. 
 
In the firgt conotitution of Illinoio freedom of the press 
 •'.va9 guaranteed to all v7ho exanined the proceedines of any branch 
 of the government, this hateing been the point of attack by the 
 English government in the past, and to every citizen was 
 guaranteed the right to freely speak, write and print on any 
 subject, being responsible for the abuse of that liberty. These 
 provisions v/ore embodied v/ithout change in the constitution of 
 1848 and in the proposed constitution of 1863. 
 
 In the constitution of 1870 all but the last sentence was 
 omitted which contained the essence of the entire section, and 
 every one of the twenty six other state constitutions then in 
 force, guaranteed freedom of the press, which of course includes 
 freedom of speech, either to all persons, as is the case in the 
 Illinois constitution of 1870, or to all citizens as was done 
 in the earlier Illinois constitutions. 
 
 The establishment of truth when published with good motives 
 and justifiable ends, as a sufficient defense in all trials of 
 libel, both civil and criminal was inserted to protect more 
 specifically the liberty of press previously guaranteed in 
 general terms. In the constitution of 1818 it was declared 
 that in prosecutions for the publication of papers 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 truth might be given in evidence, and that 
 in all indictments for lia^s^ the jury should have the right 
 of determining both the law a:-d the fact, as in other cases. 
 
 At common law, there had been an important distinction 
 
i, 
 
between civil actiona for libel, and criminal prosecutions for 
 
 the sane as to both of these provisions, vis., the admi saibility 
 
 of truth as a d-^^^ense, and the function of the jury in a trial 
 
 for libel. Wliile truth of the matter published '.vao always a 
 
 defense to a civil action for libel, since a man had no ri^ht 
 
 to a better reputation than his real character deserved, and 
 
 Was, therefore, not injured by any true fitatemsnt concerning 
 
 him, in criminal prosecutions for li^jel, the truth of the 
 
 matter published, bein^ rather a greater provocative to the 
 
 person libelled, to retaliate by acts involvinr^ a breach of 
 
 peace - which last consideration was the original basis of all 
 
 common law jurisdiction of crimes-could not be pleaded as a 
 (1) 
 
 defense. This rule as regards criminal libel was changed in 
 England by Lord Campbell's Act, 6 & 7 Victoria, Chapter 96, 
 and the provision in the Illinois constitution of 1818 expresses 
 in other terms the general form of the change in law admitting 
 truth as a defense when published with good motives and for 
 justifiable ends. 
 
 As regards the function of the jury in trials for libel, the 
 common law rule in civil actions left it to the jury, if the 
 words published were ambiguous, to decide whether or not they 
 were libellous, that is, to p-.ias on both the law and the fact. 
 
 (1) Chase's Black stone. Book III. Cap. VI. 
 
The 3ame doctrine wa3 asserted in several early casea^s regardo 
 
 criminal proaiacuti ona for libel, but wao subsequently greatly 
 
 controverted, and was certainly an anomolous one in the criminal 
 (1) 
 
 law. But by the Fox Act of 1774 the jury nas permitted to 
 render a verdict of guilty or not guilty upon the whole matter 
 in issue, and thus act as judges both of the law and the fact 
 in criminal prosecutions also. The provisions in the Illinois 
 constitution, therefore, adopted the later statutory rule in 
 both of these regards as guaranteeing fundamental rights, as 
 had also previously been done in six other constitutions of that 
 time. The constitution of 1848 and the proposed constitution 
 
 186^^, both contained the above provisions without the 
 slightest change. 
 
 In the present constitution of Illinois, the truth^when 
 published with good motives and for justifiable ends ^ was made 
 a sufficient defense in both civil and criminal trials, re- 
 affirming the former provision as to criminal trials, and^also 
 placing the defendant in a civil suit under the same consti tutiana 
 protection. By 1870 the great majority of the other states had 
 inserted a constitutional provision like that in the Illinois 
 constitution of either 1348 or 1870. In the convention of 1869, 
 the newspEipers of the state sought additional protection in a 
 petition requesting an addition to the provision as to libel to 
 the effect that "it shall in all cases be incumbent upon the 
 plaintiff to prove malice", a change in the common law rule v/hich 
 
 (1) Chase's Blackstone, Boo^l III Cap. VI. 
 
-85- 
 
 miffht hay; proved a moot undeoirable piece of constitutional 
 
 (1) 
 
 legialntion and which was wisely rejected. 
 
 The provisions of the American Bills of Rir^hts on the 
 
 liberty of the press have been quite generally considered to 
 
 mean only that liberty of publication without the previobs 
 
 permission of the government, which was obtained by the abolition 
 
 of the censorship and not to the change the comr..on lav/ rules as 
 
 to responsibility for libel. Rut Cooley considers it to 
 
 include "not only liberty to publish, but complete immunity 
 
 from legal censure and punishm.ent for the publication so long 
 
 as it is not harmful in character when tested by the common 
 
 law standards in force when the constitutional guarantees 
 
 were establislied and in reference to v/hich the^^ have been 
 (2) 
 
 adopted," the phrase "being responsible for the abuse of 
 that liberty" meaning, therefore, subject to the common law 
 liability for defamation. 
 
 (1) At common law malice was conclusively inferred from the 
 falsity and defai'iatory nature of the charge, unless the 
 defendant established privilege of communication. 
 Ghase's Blackstone, p. 683. 
 
 (2) Cooley "Constitutional Limitations" p. 6G5. 
 
-26- 
 
 (1) 
 
 Section 5. 
 
 Of the concrste rights to which the ooloniots by reason of 
 their English descent laid claim, no longer aa English subject a, 
 however, but ac individuals in a state, one of the moat precious 
 and essential ^ao the right of trial by jury. This ancient 
 bul'-^ark of English individual liberty whose origin, according 
 to Blackstone, is to be sought as far back as the Saxon colonies, 
 though not firraly established until the abolition of V.-.e Saxon 
 trials by ordeal, and the Normal trial by battle, was first 
 formally declared by Magna Charta of King John in 1215 in the 
 king's colemn agreement that no freer.an should be hurt in 
 either his person or property, "unless by the legal judgment 
 of his peers or the law of the land." The chief grievance in 
 the Petition of Right of 1628 was the violation of this provision 
 and among the oppressions of King George III enumerated in the 
 Declarn.tion of Independence was that of depriving the colonists 
 in many cases, of the benefits of trial by jury. Small wonder, 
 therefore, that every one of the constitutions of the revolu- 
 tionary period contained express guarantees of jury trial, a 
 precendent of constitutional practice which has persisted down 
 
 (l) "The right of trial by jury, as heretofore enjoyed, shall 
 remain-' inviolate, but the trial of civil cases before 
 justices of the peace, by a jury of less than twelve men 
 may be authorized by law." Constitution of Illinois, 
 1870, Art. II, 95. 
 
-27- 
 
 to the latest constitutions, at least as regardB criminal 
 
 (1) 
 
 prosecutions for major offenses. Jury trial v/as also expressly 
 protected in the Northwest Ordinance of 1787. 
 
 The Illinois constitution of 1818 contained the simple 
 provision that the right of trial by jury should remain inviolate 
 but in the constitution of 1848 there was added the stipulation 
 that it should extend to all cases at la'.?, without regard to 
 the amount in controversy, a provision not found in any other 
 st-.te constitution, in a n^-mber of which, indeed, there were 
 mentioned expres3 exceptions to the general requirement of jury 
 trial . 
 
 The present constitution, though declaring that the right of 
 trial by jury her e tof ore enjoyed, should remain inviolate, 
 adds that the trial of civil cases before justices of the peace 
 by a jury of less than txvelve men, might be authorized by law, 
 which is a direct reversal of the provision in the constitut ion: 
 of 1848, and had already been embodied in the proposed consti- 
 tution of 1863. This proviso, might it seoms, be regarded as 
 one ijranif estation of a growing conviction that the sacred and 
 time-honored trial by jury, however worthy of esteem and respect 
 
 (l) It is somewhat remarkable that in spite of the reverence of 
 the English for the jury trial, and the great emphasis 
 placed upon it by Blackstone and others, whoponsidered it 
 a right of vital importance, firmly established as a 
 constitutional principle cf English juri -:!prudence by the 
 Great Charter, the United States Supreme Court should have 
 declared that it ie, no part 6f "due process" as guaranteed 
 by Am.endment XIV of the Federal Constitution. Walker v. 
 Sauv inet 92 U.s. 90. 
 
-38- 
 
 by rea'-^on of its inportont role in the history of individual 
 
 liberty in the past, is not altogether above criticiam, ^nd 
 
 that whether b- reason of chan^^ad external conditionG, or 
 
 because of the manner in v;hich it hao coine to be administered, 
 
 the system of trial by jury demands substantial revi>3ion to 
 
 keep it from becoming moce and more a clog in the wheels of 
 
 justice. Considerable evidence of this feeling v/as found in 
 
 various motions relating to jury trial introduced in this con- 
 
 (1) 
 
 vention of 1869; one of which proposed to add that a concur- 
 rence of three fourths of a y^'-^V should in all cases constitute 
 a verdict. Several other less radical modifications were 
 offered, but one proposal went sc far as to authorize juries to 
 teturn a verdict of "not proven," after '7hich the defendant 
 might again be indicted for the sar.e offence upon additional 
 evidence being di covered. 
 
 The guarantee of jury trial "as heretofore enjoyed, " means 
 not as enjoyed in 1863 by statute, but as enjoyed by the common 
 law of England. This means that irycase of a person charged 
 
 with felony, "a jury of tr^elve men must be impanelled; the jury 
 must be indifferent between the prisoner and the people; they 
 must be summoned from the vicinage or body of the countf'y in 
 which the crime was alleged to have been committed; they must 
 unanimously concur in the verdict, and the court cannot interfere 
 to coerce them to agree upon a verdict against their convictions. 
 
 This right to trial by jury cannot be v;aived in case of felony 
 
 (3) 
 
 except by a plea of guilty, but in cases of misdemeanour the 
 
 (1) Debates of the Convention of 1869 pp.1567, 1568. 
 
 (2) George v. People . 167 111. 446 (1897) 
 
 (3) Morgan v. Peopl e. 156 111.151. 
 
(1) 
 
 defendant may put himself upon the court for tirlal* This 
 
 guarantee extending only to cases in which jury trial was 
 
 required at common law does not extend to cases of contempt 
 
 proceedings, equity proceedings, statutory proceedings not known 
 
 to the common law, eminent domain proceedings etc., in which the 
 
 (3) 
 
 common law procedure was not applif^d. 
 
 (3) 
 
 Section 6 
 
 At common law the citizen was protected against seizure 
 
 of person of property by very strict rules regarding the issuing 
 
 of warrants, and immunity in his home against unreasonable 
 
 searches and seizures waa embodied in the maxim that "every man's 
 
 house is his castle." The desire of the colonists to protect 
 
 these tights Ty constitutional provisions is traceable in part 
 
 to the abuse of executive authority in England in violating these 
 
 rights in order to obtain evidence of political offences, which 
 
 (4) 
 
 practice was finally overthrown in 1765 by Lord Camden. 
 
 In the colonies themselves, moreover the practice of issuing 
 writs of assistance to the revenue offices, authorizing them to 
 
 (1) Darst V. People , 51 111. 386. (1869) 
 
 (3) 184 111. 475; 173 111. 144; 103 111. 367; 23 111. 202. 
 
 (3) "The right of the people to be secure in their persons, 
 houses, papers and effects against unreasonable searches 
 and seizures shall not be violated, and no v/ arrant shall 
 issue without probable cause, supported by affidavit, 
 particularly describing the place to be searched and the 
 persons or things to be seized." Constitution of Illinois/ 
 1870, Art. II Sec. 6. 
 
 (4) Cooley, "Constitutional Limitations." pp.424 ff.page 424 ff. 
 
-30- 
 
 aearch suspected places at their discretion, had already caused 
 great dissatisfaction ten years before this date and had been 
 denounced by Otis as "the worst instrument of arbitrary pov/er, 
 the most destructive ibf English liberty and the fundar:ental 
 
 (1) 
 
 principles of law that ever was found in an English law book." 
 
 This prohibition of general warrants has been characterized as 
 
 the only constitutional principle to be first established in 
 
 (2) 
 
 America and later adopted in England. 
 
 The Virginia Bill of Righto of 1776 had contained an express 
 prohibition on general warrants of search and seizure which was 
 •ncorporated in the Constitution of IlDinois 1818 following the 
 declaration that thg^t people should be secure in their ^persons 
 houses, papers and possessions fron unreasonable searches and 
 seizures. Almost all of the other constitutions of 1818 contained 
 similar proMsions, and this section in the constitution of 1818 
 v;as retained without change in the constitution of 1848, at which 
 time all but four of the twenty-eight other constitutions 
 embodied similar provisions. 
 
 There was no alteration of this section in the constitution 
 of 1863, but the convention of 1869 changed the phr-aseology 
 somewhat by adopting verbatim the form of the fourth amendment 
 to the federal constitution. At the time of the f rami ng ^s^'Se 
 present o©nstitution there was one state constitution only which 
 did not contain a similar provision, viz., Nev/ York 1846, which 
 
 (1) Gooley, "Constitutional Limitations." pp. 424 ff. 
 
 (2) Stimson "Federal and State Constitutions of the 
 United States." p. 149 n.lO. 
 
still continued under the constitution in force in 1348, when 
 
 the prior Illinois constitution W3.8 adopted . 
 
 The purpose of this conati tutiona.1 prohibition was to 
 
 establish the couimon lav; as to searches and seizures, which had 
 
 always been extrem-ely jealous of the right of the individual^ 
 
 to immunity from such interference with his person and property. 
 
 Unreasonable searches and seizures are those without warrant 
 
 properly obtained in cases where the comrion law required them. 
 
 Rut atrests without warrant are not abridged by the constitution 
 
 where such arrests could be made at common law before its 
 
 adoption. Probable cause must be shown by the production of 
 
 evidence satisfactory to the court of such facts as to convince 
 
 (3) 
 
 the magistrate that the suspicion is well founded, and to 
 
 justify the issuing of a warrant the affidavit must state either 
 
 that the person therein described cormitted the offence or that 
 
 the person making the complaint has just and reasonable grounds 
 
 to suspect, or does in fact suspect that he is guilty of the 
 (3) 
 
 offense . 
 
 (1) north v. People 139 111. 81 (1891) 
 
 (2) White V. Wag;ar 185 111. 195. 
 
 (3) Housh V. . People 75 111. 487 (1874) 
 
-33- 
 
 (1) 
 
 Section 7, 
 
 The provision that all persons shall be bailable by oufficiart 
 
 sureties except for capital offences v/here the proof is evident 
 
 or the presumption great represents in effect the common law 
 
 (2) 
 
 rule of England as to bail. Since by the concept of the 
 common law every man was regarded innocent until proved guilty, 
 it followed also that every man was to be treated with all 
 possible leniency even after arrcb't for crimes and that con- 
 finement in jail should not be resorted to if the appearance 
 of the accused for trial could be assured in some other way« 
 Hence at common law every man was entitled to be released on 
 bail before conviction upon sufficient sureties except for 
 Capital offences on charges based on more than a mere suspicion, 
 when indeed the public welfare demanded the highest surety viz., 
 the custody of the accused himself. 
 
 Though the first American Bill of Rights contained no 
 express guarantee or the right to bail, it was impliedly 
 guaranteed in the prohibition against requiring excessive bail, 
 which had been forbidden in England bf Statute 1 W. and M. 2, 
 Chapter 1, and in the Northwest Ordinance it had been declared 
 that all persona shall be bailable unless for capital offences 
 where the proof is evident or the presumption great. 
 
 (1) "All persons shall be bailable by sufficient sureties, 
 except for capital offenses, where the proof is evident 
 or the presumption great; and the privilege of the writ 
 0^ habe as corpus shall not be suspended, unless when in 
 cases of rebellion or inifasion the public safety may 
 require it." Constitution of Illinois, 1870. Art II 
 Sec. 7. 
 
 (2) Chase's Blackstone p .1001 . 
 
-33- 
 
 The first constitution guaranteed the right to bail in the 
 
 terms which have been retained in all three of the later 
 (1) 
 
 constitutions. About one half of the constitutions then in 
 
 force contained similar express guarantees of the right to bail 
 
 and most of the others impliedly guaranteed it by such provisions 
 
 as the ones adopted in the Virginia Bill of Rights. 
 
 Closely connected with the guarantee of bail is the guarantee 
 
 of the writ of habeas corpus, which was another common law right 
 
 of English subjects and was re-affirmed in the Habeas Corpus Act 
 (2) 
 
 of 1679, This writ which secured to the individual a hearing 
 as to the legality d his imprisonment and which was* and is, 
 characteristic of the English law alone, was regarded as one 
 of the most important of individual rights, and the Habeas Corpus 
 Act as the "second Magna Chart a and stable bulwark of liberties." 
 
 In England the privilege of this writ could legally be 
 suspended in cases of evident necessity, but only upon authority 
 given by Parliament to the Crown. The possibility of such an 
 exigency was provided for in the first Illinois constitution by 
 the provision qualifying the prohibition of suspending the 
 
 (1) Illinois is the only state that has no prohibition or 
 excessive bail. Stimson, supra P . 105. 
 
 (2) Stubbs "Select Charters." p. 517. 
 
 (3) "There i s on the continent nothing corresponding to the 
 constitutional right of any individual when arrested by 
 
 an officer of the governinent to demand instant information 
 of the cause of his arrest and to be set at large unless 
 indicted ]y a grand jury for a crime not bailable or for i 
 which the person accused is unable to give satisfactory 
 bail." Stimson "Federal and State Consti tutiolis" p. 18. 
 
==—=—^^ ^1 
 
 -34'- 
 
 writ viz., "unless when in casea of rebellion or invasion the 
 public safety may require it." 
 
 In the Northwest Ordinance of 1787 the inhabitants of the 
 Territory had been declared to be always entitled to the benefits 
 of the writ of habeas corpus, and provisions were found in 1318 
 in over half of the other state constitutions similar to the one 
 in the first Illinois constitution, which was retained without 
 change in the subsequent constitutions of the state. 
 
 (1) 
 
 Section 8 
 
 The protection against criminal prosecution except after 
 
 indictment by grand jury that is, formal accusation by a body 
 
 of from twelve to twenty-three sworn men of the c.ov>iaty extends 
 
 even farther back in English criminal procedure than does the 
 
 right to trial bv petit jury and has been traced to the Hundred 
 
 (2) 
 
 Courts of Aethslred. At common law indictments or presentments 
 by grand jury, ^vere required in all cases, though for raisdemeanoui 
 the method of accusation by information was used as well, 
 especially in cases of misdemeanors that tended to disturb or 
 endanger the government. But this latter species of proceeding 
 was looked upon with great disfavor in England because of its 
 ab^se in the times preceding the revolution, and was there later 
 
 (1) No person shall be held to answer for a criminal offence, 
 unless on indictment of a grand jury except in cases in 
 which the punishment is by fine or imprisonment otherwise 
 than in the penitentiary, in cases of impeachment and in 
 cases arising in the army or navy or in the militia when 
 in actual service in time of war or public danger: 
 Provided, thrit the grand jury may be abolished in all cases.' 
 Constitution of Illinoi s, 1870, Art . II. Sec .8 . 
 
 (2) Stir<3on "Federaland State Constitutions" p. 169 n. 
 
-35- 
 
 (1) 
 
 regulated ly statute. In America aloo this accusation by 
 information v/aa very unpopular, though only one of the revolu- 
 tionary constitutions viz., ITorth Carolina 1776, contained any 
 other guarantee of indictment by grand jury than that contained 
 in the provision establishing the Engli,3h common lav/ as the law 
 of the states. 
 
 Wlien, however, the first constitution of Illinois came to 
 be framed, the Federal constitution had expresoly guaranteed 
 the right to indictment, and seven other states had followed 
 this precedent in their constitutions. The Illinois constitution 
 of 1818 provided that no indictable offence should be proceeded 
 against criminally by information, a principle that went beyond 
 the common law rule which r^^cognized some kinds of offences 
 that could be proceeded against by either indictment: or infor- 
 mation. The exceptions recognized in the constitution of 1818 
 were the same as existed at common la"', namely, trial by court 
 martial, and bv impeachment, to which proceedings the require- 
 ment of grand jury indictment never applied. 
 
 In the constitution of 1848 indictment or presentment of 
 a grand jury was required for all offences punished with imprison- 
 raent or death or fine above one hundred dollars, except in cases 
 of impeachment or cases arising in the array or navy or in the 
 militia when in actual service in time of war or public danger. 
 Similar provisions existed at that time in all but eight of the 
 
 state constitutions, and of these eight, six were still the 
 
 early constitutions adopted before the first Illinois consti tutioiil 
 
 (1) Chase's Blackstone Cap. XXI. 
 
-36- 
 
 Of the two others, one wae that of the civil law state of 
 Lcui3iina> and thfj other was that of Virginia which had retairied 
 its original Bill of Rights of 1776 in its second consti tutior. . 
 
 It appears, therefore, that the indictment by grand jury 
 cawe to have growing importance in the American Rills of Righfe 
 in the thirty years between the framing of the first and second 
 Illinois constitutions, and in the proposed constitution of 
 Illinois of 1862 there was embodied the same guarantee. 
 
 But in the Illinois convention of 1669 there was evidenced 
 
 considerable opposition to the grand jury system. Some motions 
 
 suggested a reduction in the total number of grand jurymen, or 
 
 in the nunber required for a finding, and some advocated the 
 
 abolition of the grand jury with power in the legislature to 
 
 re-eststbli sh it, while others, more extreme, went to the length 
 
 (1) 
 
 of demanding complete abolition. Several speeches in 
 
 strong denunciation of the evils of the grand yary system were 
 
 (2) 
 
 delivered while others as warmly defended it. The agitation 
 
 terminated finally in the proviso now found in section eight 
 
 to the effect jrhat the grand jury may be abolished by law in all 
 
 Cases, leaving the advisability of abolishing this ancient 
 
 system to be determined b/ legislature, which that body in the 
 
 forty years since the authority v/as conferred upon it has not 
 
 (3) 
 
 seen fit to do. It is interesting to note that of the twenty 
 
 (1) Debates of the Convention of 18S9 p. 174. 
 
 (2) Ibid pp. 1434-1438, 1440-1442. 
 
 (3) Recent evidence of continued opposition to the grand jury 
 system is furnished by the introduction into the two last 
 sessions of the Illinois legislature of bills to abolish . 
 the system. 
 
-37- 
 
 four 3tate constitutions which in 1370 expresGly guaranteed 
 
 indictnient by grand jury, Illinoi.i v/as the only one that permittee 
 
 it to be abolished by the legislature, although Indiana 
 
 which, however, had not expressly protected it, had in 1R51 
 
 (1) 
 
 adopted a similar provision. 
 
 In Illinois under the present conatitution v/hat v;as practical 
 the conimon law rule as to grand jury indictment is confirmed. 
 Indictment is essential to the legal prosecution of persons 
 
 (2) 
 
 charged with crime .puni shable by penitentiary imprisonr. ent, 
 
 and where conviction would result in disqualification to hold 
 
 (3) (4) 
 public office, but no to hold persons to answer for misdemeanor 
 
 The proviso at the end of the section Virtually authorizes the 
 
 legislature to change a constitutional provision, but that its 
 
 effect is not, as night at first appear to be the case, 
 
 to nullify the whole section would seem to be shown by the 
 
 reluctance evidenced by the subsequent legislatures of this 
 
 state to alter a system which the constitution of tho state 
 
 evidently wished to favor. 
 
 (1) Constitution of Indiana, 1851 Art. Vii Sec 17. 
 
 (2) Paulse n v, P_epp.le 195 111. 507 (1302) 
 
 (3) Peop le V, Ripley , 171 111. 44 (1897) 
 
 (4) Brewster v. People 183, 111. 143 (1899) 
 
--38- 
 
 (1) 
 
 Saction 9. 
 
 The rights of the accused in criminal proseoutiono guaran- 
 teed bythig section, were for the' mo3t part rights to v;hich 
 English subjects were entitled by the con:non la'^v and which v;ere 
 considered essential attributes of personal liberty and security. 
 So at common lav; an indictment could not be tried unles3 the 
 defendant personally appeared. So also the defendant was 
 entitled to the assistance counsel as to the matters of law 
 
 arising on the trial. As to other matters the defendant was 
 not entitled to cotinsel, on the principle that the judge should 
 be counsel for the prisoner and see that the proceedings against 
 himwere legal and strictly regular. Rut Blackstone rightly 
 speaks of this latter rule as "not at all of a piece with the 
 rest of the humane treatment of prisoners by the English law" 
 and states that the judges never scrupled to allow a prisoner 
 the assistance of counsel to instruct him what questions to 
 
 ask or even to ask questions for him, with respect to natters 
 (2) 
 
 of fact. 
 
 (1) "In all criir.inal prosecutions the accused shall have the 
 right to appear and defend in person and by counsel; 
 to demand tns nature and cause of the accusation and to 
 have a copy thereof; to meet the witnesses face to face, 
 and to have process to compel the attendance o^ witnesnes 
 in his behalf and a speedy public trial by an impartial 
 jury of the county or district in which the offense is 
 alleged to have been committed." Constitution of Illinois 
 1870 Art. II Sec. 9. ' 
 
 (2) Chase's Blackstone p. 1025. 
 
-39- 
 
 When the prisoner was arraigned, the indictment, which 
 contained in great detail all ipattera bearing on the accusation 
 Was read to hin that he niight fully understand his charge, which 
 v/as all that was necesoary at a time when the general inability 
 to read, especially among the criminal classes, made a require- 
 ment of a copy for the defendant superfluous. 
 
 The right to meet the v/itnesses for the prosecution, and to 
 
 question theiajvas also a xmmon law right, though the defendant 
 
 had no right by the early rule to introduce witnesses in his 
 
 (1) 
 
 own behalf in capital cases. But by Statute 1 Ann. 2 ch. 9 
 it Was declared that in all cases of treason and felony all 
 witnesses for the prisoner should be exanined upon oath in like 
 manner as the witnesses against him. Finally the right to a 
 trial by a jury of the county where the fact was committed wac 
 also recognized by the comirion la.vi and insisted upon as one of 
 the greatest protections for the accused, based on the early 
 theory that the jurors were witnesses, and themselves cognizant 
 of the commission or non-commission in their midst of the act 
 charged. 
 
 The Virginia Bill of Rights enumerated substantially all 
 
 (2)' 
 
 of these rights of the accused and all but three of the 
 constitutions in force when Illinois becarrie a state contained 
 
 (1) Chase's Rlackstone p .1028 . 
 
 (2) Ga. 1798, II. J. 1776, S.C 1776. 
 
-40- 
 
 expreaa proviaiona of a Similar nature. T;-.e firjt conoti tuticn 
 of Illinoia declared the righta of the accuoed in pri-ctically 
 the same terms found in the present constitution, and no 
 material change was rriade in the aecond conati tuti on . The ri^ht 
 ofydefendant to conpel the attendance of vdtneasea inhia favor 
 had been protected in two thirds of the consti tutiona then in 
 force. The present constitution contains the additional proviaon 
 that the accused have the right to a copy of the accusation, 
 a right guaranteed in nine other constitutions in force in 1870. 
 In the constitution of 1869 it was suggested to guarantee to 
 the defendant t;.e right to have his counsel close the argument 
 to the :ury, and also to make non-free-holders incompetent 
 as jurors, if objected to on that ground, but otherwise no 
 changes in the provisions of th'~ former constitutions were 
 proposed. 
 
 The provisions of the present constitution, like the 
 
 requirements of the common la'vV in this respect, refer only to 
 
 ni si pr ius trials, that is, not to appeals; or other proceedings 
 (1) 
 
 of review in higher courts. The presence of the accused, 
 
 though essential in cases of felony, is not necessary at the 
 
 (2) 
 
 trial of mers misdemeanours, and mayi in this latter case 
 be Waived by him. 
 
 (1) Field en v. People , 138 111. 595 (1889) 
 
 (3) Rloomingto n v. Heiland 67 111. 378 (1873) . 
 
-41- 
 
 The right to appear by counsel includes the right ^ to ha^^ 
 one's counsel allowed a reasonable time for argument. 
 
 The purpose of requiring a copy of tl^e accusation io to 
 oecure such specific designation of the offence charged as to 
 enable the defendant to prepare fully for his defence and to 
 plead the judgment in bar of a subsequent prosecution for the 
 same offence. 
 
 The right to meet the '.Titnesses face to face excludes all 
 
 evidence by depooition in criminal trials, with the single 
 
 (5) 
 
 exception of dying declarations. 
 
 The right to a speedy trial guarantees against arbitrary 
 
 and oppressive delays only, not 8uch/a3~lire due to congestion 
 
 (4) ^ 
 
 of cases on the docket, and the requirement of a public trial 
 
 is not violated when the doors of the court room are closed for 
 
 a temporary purpose during the trial of a criminal case if not 
 
 (5) 
 
 for the purpose of excluding anyone connected with the trials 
 
 The guarantee of an impartial jury means a jury impartial in 
 
 (6) 
 
 the sense in which that term was understood at cor.ir.on lav/, that 
 
 is chosen under the safeguards with which the common law surro^nd< 
 
 (7) ^ 
 the choice of jurors. Finally the requirement of a jury of the 
 
 (1) White V. People , 90 111. 117. (1878) 
 
 (3) West V. People. 137 111. 189. (1391) 
 
 (3) Starkey v. Peop le, 17 111. 17. (1855) 
 
 (4) Weyri c h v. Pe ople , 89 111. 90. (1878) 
 
 (5) Stone v. People 3 111. 336. (1840) 
 
 (6) Coughlin v. People 144 111. 140 (1893) 
 
 (7) See Chase's Blackstone. Cap. XXV. 
 
-43- 
 
 county or district may be waived 'cy the defendant by asking a 
 
 (1) 
 
 change of venue. 
 
 (2) 
 
 Section 10 
 
 In the sme catagory with the rights of the accused protected 
 
 in the preceding section is the freedom from self-incrimination 
 
 and from double jeopardy, iThich was also carefully protected 
 
 by the rules of the common law. Firstly, it was an established 
 
 rule of evidence at common law that confessions were not admissibl s 
 
 as evidence unlesij they were freely given without fear of harm 
 
 ^r hope or favor, and a confession obtained by compulsion, though 
 
 used when the trial by ordeal and other inquisitorial trials 
 
 were still in force was not admissible in the later common law 
 
 (3) 
 
 prosecution of crimes. Says Cooley "A peculiar excellence of 
 the common law system of trial consists in the fact that the 
 accused is never compelled to give evidence against himself." 
 
 So also of the protection against double jeopardy, Blackstone 
 says it is a "ttniversal maxim of the common law of England 
 that no man is to be brought into jeopardy of his life more 
 than once for the same offence, " and in every case the defendant 
 might plead former jeopardy in bar of the accusation. 
 M Weyrich v. People 89 111. 94 (1878) 
 
 (2) "No person shall be compelled in any criminal case to give 
 
 evidence against hiir.self or be twice put in jeopardy for 
 the same offence," Constitution of Illinois, Art. II 
 Sec. 10. 
 
 (3) "constitutional Limitations." Cap» X 442. 
 
 (4) Chase's Blackstone p. 1019. 
 
The guarantee againot being compelled to give evidence 
 againat onoaelf wati put into the Virginia Bill of Rights and 
 into all but four of the other constitutions in force prior to 
 1818, including the federal constitution . Put the protection 
 against double jeopardy was found in only one half of those 
 same constitutions, not having been inserted into the prototype 
 of the early Bills of Bights. In the first Illinois constitution 
 both of the ^^e provisions were embodiecfi and they have remained 
 in the same ternis down to the present consti tution, being adopted 
 H»byy^he convention from the foriner constitutions without comment. 
 Both guarantees exi:3ted on almost all the other constitutions 
 in force in 1870 
 
 The constitutional protection against self-incrimination 
 
 means that neither a witness nor the defendant in a criminal 
 
 Case need answer any question the answer to which will expose 
 
 him to any penalty, fine, forfeiture or punishment, or which 
 
 will have a tendency to accuse him of any crime or misdemeanor 
 
 or to ez'cpose him to any penalty or forfeiture or Y/hich would 
 
 be a link in a chain of evidence to convict him of a criminal 
 (1) 
 
 offence. But this privilege is personal to the witness 
 
 (3) 
 
 and he may waive it without consent of the defendant. Furthermore, 
 this constitutional privilege cannot be claimed if ty reason of 
 an immunity statute the evidence obtained under compulsion can 
 
 (1) Lam son v. Boy den 160 111. 613 (1896) 
 (3) Sajnu el v. People 154 111, 379 (1897) 
 
-44- 
 
 in no Way be used as a basio in aid of a prosecution which 
 
 (1) 
 
 might result in fine, imprisonment, penalty or forfeiture. 
 
 The protection against double jeopardy means that no 
 
 person shall twice be put in peril of conviction for the some 
 
 (3) 
 
 act and offense, and whether two indictments are for the 
 
 same offense must be determined by an inspection and comparison 
 
 (3) 
 
 of the indictments. If the facts charged in the second indictmer||t 
 
 would have sustained conviction under the first indictment, the 
 
 plea of former jeopardy IjS good, but where the facts charged 
 
 in the second indictment would not, if proveol, have warranted 
 
 conviction under the first, the plea of former jeopardy cannot 
 (5) 
 
 be maintained. 
 
 The verdict itself forms a bar to Gubsequent prosecution 
 
 (6) 
 
 for the same offense though there is no judgment on it, but 
 
 where judgment of conviction is arrested or reversed at the 
 
 instance of the accused he will not in legal contemplate have 
 
 been in jeopar^iy, but may again be put on trial for the same 
 (7) 
 
 offense . 
 
 (1) People V. Butler St. F oundry 20, 111. 336 (1903) 
 
 The immunity clause in the act here in question was 
 
 as follows:- " PROVI DED that no corporation etc shall 
 
 be subject to any cfiminal prosecution by reason of anything 
 truthfully disclosed by the affidavit required by this act 
 or truthfully disclosed in any testimony elicited in the 
 execution thereof." 301 111, p. 343. 
 
 (3) Fr eel and v. People 16 111. 380 (1855) 
 
 (3) Durha m' v. People 5 111. 172 (1843 
 
 (4) Ibid'^^ 
 
 (5) Gued'el v. People 43 111. 336 (1867) 
 
 (6) Hankins v. Peopfe 106 111. 638(1883) 
 
 (7) Gerhard v. People 4 111. 362 (1842) 
 
-45- 
 
 So al30 if the jury ia discharged in case of di QacreeiT:ent, the 
 
 (1) 
 
 former jeopardy will not be available as a plea to a nev; trial* 
 
 When the sane act constitmtes several offenses, trial and 
 
 punishment for one will be no bar to a prosecution for the 
 
 (3) 
 
 Others growing out of the same transaction. So for instance 
 
 where one single act violates a local ordinance, a state law 
 
 and a law of the United States there are three distinct offenses 
 
 which are punishable as such. Similarly in case of an act 
 
 which is both a contempt of court and an indict ablejcrime, the 
 
 indictment and the proceeding for contempt are entirely distinct 
 
 (3) 
 
 and neither will be a bar to the other-. 
 
 (4) 
 
 Section 11 . 
 
 Of the three provisions in the next section, the first 
 one, requiring that all penalties shall be proportioned to the 
 nature of the offence, can be found in England as early as Magna 
 Charta, where it is declared that "a freeman shall not be a^nerced 
 for a small offence, but according to the degree of the fault 
 
 (5) 
 
 and for a great crime in proportion to the heinousness of it". 
 The spirit of this prohibition was expressed in the early America! 
 constitutions either b/- a provision like that in the English Bill 
 
 (1) Dryer v. People 188 111. 4C (1900) 
 
 (2) Trausch v. Cook Co. 147 111. 534 (1893) 
 
 (3) Reattie v. People 33 111. APP • 651 (1889) 
 
 (4) "All penalties shall be proportioned to the nature 
 of the offense, and no conviction shall work corruption 
 of blood or forfeiture of estate; nor shall any person 
 
 be transported out of the state for any offense committed 
 within the same." Constitution of Illinois, 1870. Art. II Seqll 
 
 (5) Magna Charta, Cap. 30 Stubbs "Select Oharter s"p .399 . 
 
-46- 
 
 of Rights against oxce33iv'i fines and cruel and unusual punish- 
 U) 
 
 ment, found in th© Virginia Rill of Rights and in the federal 
 
 constitution, or by a requirement that all penalties shall 
 
 be proportioned to the nature of the offence, as in the Illinois 
 
 constitution of 1818. In one or the other of theae two forms 
 
 this eatly provision of Magna Chart a existed in over half 
 
 the constitutions in force in 1818 and Articled of the Northwest 
 
 Ordinance had provided that "all fines shall be moderate and no 
 
 cruel or unusual punishments shall be inflicted." 
 
 The second provision, to the effect that no conviction 
 
 shoul! work corruption of blood, or forfeiture of estate, is 
 
 directed against the common law rule that descent could not be 
 
 traced through a person convicted of treason or felony, and 
 
 that his real and personal property were, therefore, forfeited, 
 
 the former to the lord of the fee, the latter to the king. 
 
 These incidents of treason and felony prevailed from the earliest 
 
 time, and had their source in the feudal theory that property, 
 
 especially realty was held of a superior lord Upon the 
 
 condition of discharging duties attaching to it, and was for- 
 
 (3) 
 
 feited by breach of these conditions. 
 
 This prohibition was not found in the earliest Bill of 
 Rights nor in the fedal constitution and when the first Illinois 
 constitution was framed, only three other constitutions contained 
 the prohibition exactly, though four others contained it in 
 
 (l) This prohibition had already been anticipated in the 
 Massachusetts Body of Liberties, clauses 43, 45 and 
 46 Stimson "Federal and State Coiiatitions, " p. 33. 
 
 (3) Stephen "History of the Criminsftl Law of England. V.l p. 487, 
 
-47- 
 
 modified form. 
 
 The last provio-^on in thia section forbidding deportation 
 
 for crime committed wi'-hin the state wao necejaitated by the 
 
 English statutes just prior to the American Revolution, making 
 
 deportation a substantive punishment. The punishment was 
 
 unknown at common law, and in 1679 the Habeas Corpus Act had 
 
 forbidden the deportation of English subjects as prisoner 3 out 
 
 (1) 
 
 of the kingdom. It was introduced as a condition of patdon 
 
 (3) 
 
 in Case of crimes excluded from clergy and by reason of 
 
 statutes passed in eighteenth century, had become part cf the 
 
 law of the colonies upon their separation from England. This 
 
 provision was, however, very rcire in the early constitutions 
 
 and in 1818 only three of the eighteen then existing state 
 
 (3) 
 
 constitutions contained such a prohibition. 
 
 All three of the above provisions were adopted in the 
 constitution of ].348, though the committee on the Bill of Rights 
 omitted all mention of the first two in its report. In the 
 constitution of 1870 these same stipulations were retained 
 without change, though it was sug.^^ested among other changes 
 to add that the death penalty should never be inflicted. 
 
 The question whether the imposition in a particular instance 
 of a punishment, though authorized by the legislature, violates 
 the requirement that penalties shall be proportioned to the 
 
 (1) Stubbs "Select Charters," p. 53. 
 (3) Stephen, supra pp . 480, 487. 
 
 (3) Mississippi, 1817, Ohio, 1803jVermont 1793. 
 
 (4) Debates of the Convention of 1869 p. 1573. 
 
-4S- 
 
 nature of the offence, is of course, left to the diacretion 
 
 of the court. But it 13 a diocretion to be judicially exercised 
 
 and there may be caaeo in which a puAlshment, thou£;h within the 
 
 limits fixed by a statute, is so clearly excessive a3 to be i:. 
 
 (1) 
 
 violation of this constitutional requirement. 
 
 But whether the penalty imposed ty statute on a crime is 
 
 excessive per se, is a matter primarily for legislative discretion. 
 
 When the legislature has authorized a designated punishment for 
 
 a specified crime, the court will not hold it invalid, unless it 
 
 is a cruel or degrading punishment not known to the common law 
 
 or a degrading punishment which had become obsolete in the 
 
 state prior to the adoption of its constitution or is so wholly 
 
 di sproportioned to the offence as to shock the moral sense of 
 (3) 
 
 the community. 
 
 An act imposing tbejf orf ei ture of all franchises of a 
 
 corporation as a penalty for any violation of the prohibition 
 
 of the act on discriminating freight rates was held to contravene 
 
 (3) 
 
 this provision of the constitution. But providing an increased 
 
 penalty for a second offence is not imposing a disproportionate 
 
 (4) 
 
 penalty, for repetition of the offence aggravates the guilt. 
 
 (1) Cooley "Constitutional Limitations." p. 471. 
 
 (3) People V. Illinois State Reformatory 148 111. 413 (1SS4) 
 
 (3) C & A. H. R. Co . V. People 57 111. 11. (1873) 
 
 (4) Kelly v. People 115 111. 583. (1886) 
 
Section 12« 
 
 Imprisonment for debt waa one of the great defects of the 
 common la'v from the earliest time 3 until well into the nineteenth 
 century in England, an:! existed in most of the American colonies 
 for many years, thour/n somewhat mitigated by insolvent laws. But 
 the absurdity and injiustics of imprisoning honest debtors was 
 pretty generally teal i zed by 1776, when the first American 
 constitutions 'vere being framed, and seven of the state constitu- 
 tions in force when Illinoig became a state embodied a prohibition 
 
 against imprisonment for debt, in the absence of fraud, as one 
 
 (3) 
 
 of the guarantees of individual liberty. The constitution 
 of 1848 and the proposed constitution of 1862 retained this 
 provision from the earliest constitution, and no change was 
 made in the section when adopted into the present Illinois 
 constitution, 
 
 This constitutional guarantee is confined to actions upon 
 contract*^* express^mpli ed, and does not apply to liabilities 
 for totts nor to fines or penalties arising from a violation 
 
 (1) "No person shall be imprisoned for debt unless upon 
 refusal to deliver up his estate for the benefit 
 
 of his creditors in such manner as shall be 
 prescribed by law or in cases where there is strong 
 presumption of fraud." Constitution of Illinoi s, 1870, 
 Art. II, Sec. 13. 
 
 (2) This principle had already been embodied in the 
 Massachusetts Body of Liberties, 1641, in the 
 provision that no man should be imprisoned for 
 debt if the law could find competent means of 
 satisfaction otherwise from his estate. Stimson 
 "Federal and State Constitutions," p. 33. 
 
 (3) Rich V. f eople 66 111. 513 (1873) 
 
-6 0- 
 
 (1) 
 
 of the penal laws of the State, and a court ca. not conirnit 
 
 for contempt in not obeying a decree to pay money unlesj the 
 
 (2) 
 
 refusal is wilful and not cauaed by financial liability. 
 
 (3) 
 
 Section 13. 
 
 The right of eminent domain, that is the power of the state 
 
 to appropriate to its own use or to that its agents private 
 
 property of its citizens needed for public purposes, is 
 
 inherent in sovereignty and is as old as government itself. In 
 
 early times, moreover, the duty of the state to cor.pensate the 
 
 individual for property so taken, waa not recognized, and even 
 
 in England private property was frequently taken for the use 
 
 (4) 
 
 of the crown without compensation. But Blackstone in discusang^ 
 
 the limitations on the absolute right of private property 
 
 declares that the legislature alone can act in the exercise 
 
 of the power of eminent domain and that only by giving the 
 
 individual, so deprived, a full indemnification and equivalent 
 
 (5) 
 
 for the injury thereby sustained. Eminent domain differs 
 
 from taxation, in that i n the former case the citizen is compelled 
 to surrender to the public something beyond his due proportion 
 for the public benefit. It is a primary requisite, therefore. 
 
 (1) Kennedy v. People 123 111. 649 (1887) 
 
 (2) Blake v. People 80 111. 11 (o875) 
 
 (3) "Private property shall not be taken or damaged for public 
 use without just compensation. Such compensation, when not 
 made by the State shall be ascertained by a jury, as shall 
 be prescribed by law. The fee of land taken for railroad 
 tracks, without consent of the owners thereof shall remain 
 in such owners subject to the use for which it is taken." 
 Constitution of Illinois, 1870 Art. IT Section 13. 
 
 (4) White "Constitution of Pennsylvania" Cap .XXVI . 
 
 (5) Chase's Blackstone p. 79, 
 
V 
 
 { 
 I 
 
-51- 
 
 in the appropriation of lands for public purposes that comp en- 
 CD 
 
 fiation shall be made therefor. 
 
 A3 thio pov;er of eminent domain does not depend upon 
 constitutions but exi'jts independently of them, inherent in 
 sovereignty, no affirmative declaration of the power was 
 requisite in the framing of our Merican constitutions. But 
 to guard against abuse of the power by the sovereign through 
 its agents, it was felt necessary to embody some limitations 
 thereof in the fundamental law of the state. The Virginia Rill 
 of Rights did not contain such a provision nor did any of the 
 other constitutions of that year which v/erejmodel ed after it. 
 But the Ilortwest Ordinance had provided for compensation, 
 and when Illinois in 1B18 first framed a constitution, one 
 half of the state constitutions then in force contained some 
 limitation of the power of emjinent domain. 
 
 In the first Illinois constitution it was provided that 
 no man's property should be taken or applied to public use, 
 without the consent of his representatives in the general 
 assem^bly, nor 7;ithout just compensation being made to him, which 
 atill showed the distrust of executive usurpation of pov/er so 
 strongly experienced by the An-erican colonists in 1776. In 
 the first draft of the Illinois constitution submitted to the 
 convention it was provided that com.pensation should be previ ously 
 made, which condition had not formerly been considered essential 
 to the Validity of the exercise of the power, at least by the 
 
 (1) Chase's Blackstone p. 79. 
 
-52- 
 
 (1) 
 
 State itaclf. But this augr^eation vian not at that time 
 adopted. 
 
 Nd change Wa3 made in the provi:^icn regarding eminent 
 domain in the constitution of 1848, but important changes were 
 made in the present cons^ti tut i on in 1870. In the firyt place, 
 while it had been the univeroal rule that the compensation 
 awarded ?7ao to be measured by the value of the property taken 
 and the direct injury to the ov/ner from the loss, ao that any 
 proper exercise of the powers of government which did not 
 directly encroach upon the property of an individual or 
 disturb hirr. in hia possession or enjoyment would not entitle 
 him to compensation, it was now provided, for the first time in 
 any state in the Union, that private property should not be 
 taken or darnaF,ed for public use without just compensation. 
 
 This important innovation was not adopted without consider- 
 able discussion and some opposition in the convention of 1869, 
 mainly on the ground that by departing from the settled rules 
 relating to eminent domain there was no certainty as to where 
 the courts might stop in the application of thin new provioicn, 
 resulting perhaps in making it impossible to carry ouf certain 
 important public inproverient s because of the extent of dam^ages 
 to be paid to private owners. Rut this eminently just and 
 reasonable provision was retained and has been copied in a 
 
 (2) 
 
 number of the state constitutions adopted since that time. 
 
 Another important change introduced in the consti tutiorlof 
 
 (1) Cooley "Constitutional Lim.i tations . " p. 813. 
 
 (2) Ibid p. 810. 
 
-53- 
 
 IS'^O with respect to the right of eminent doniair., wan the 
 
 provision as to the manner of ascertainins the conpenaation due. 
 
 Under the former constitutiono it was left T/ith the le^i .slature 
 
 to fix the manner of determining such compensation* What the 
 
 tribunal shall be which is to asse33 the compensation, m.uct 
 
 be determined either by the constitution or by the statute which 
 
 provides for the appropriation, for the exercise of the right 
 
 of eminent dom.ain is not one where, as a matter of right, the 
 
 (1) 
 
 party is entif ed to trial by jury. 
 
 But the proceeding being judicial in character, the 
 party in interest is entitled to h?^ve an impartial tribunal and 
 the usual rights and privileges which attend judicial investi- 
 gations, and the Convention of 1863 felt that jury trial was 
 the best manner of securing such im.partial investigation, in 
 
 cases where the richt was not being exercised by the State 
 (3) 
 
 itself. It Was first proposed to provide for an alternative 
 body of three commissioners, appointed by a court of record, to 
 ascertain the compensation^which was the miethod of assessing 
 such compensation under the existing statutes. But this 
 provision was struck out of the committee report by the conventic||ri, 
 m.any members of which were in favor of prescribing even more 
 omi - yiontly the process to be followed in assessing compensation 
 hy a jury. It was again variously suggested to require compen- 
 sation to be first made, and several resolutions were introduced 
 
 (1) Cooley "Constitutional Limitations." p. 817. 
 
 (2) This provision was taken from the Constitution of Hew 
 York 1846, and was found elsewhere only in the consti tution£ 
 of Iowa 1857, Ij^ichi^ .^^n 1850, and Oj ^io^ 1851 . 
 
-54- 
 
 with a view to prohibiting: the deduction of benefits from the 
 
 compenaation to be awarded. This latter proposition aroused 
 
 much discussion, being re[^arded b y sor.e as essential to a 
 
 just exercise of the power of eminent domain, and by others 
 
 as itself most unjust and fc^^t unreasonai^i e . The general 
 
 expression of sentiment was, however, distinctly in favor of 
 
 such a limitation and it was in fact adopted by the convention, 
 
 (1) 
 
 but upon re-referment to the committee was finally omitted. 
 
 Various other resolutions and motions relative to the 
 
 right of eminent domain were introduced, there being more 
 
 discussion of this section of the Bill of Rights than of any 
 
 other, due principally to what were considered the abuses of 
 
 this right by the public ser^/ice corporations, especially the 
 
 railroads which had of late been making such large use of 
 
 the po7/er. But the convention as a whole realised the wisdom 
 
 of leaving the natter of detailed regulation of the power to 
 
 the legislature, and rejected the more radical suggestions, 
 
 one of which went 30 far as to provide that no man should be 
 
 (2) 
 
 deprived of his property in any case against his consent. 
 
 The provision that the f'^e of land taken for railroad 
 tjfe.ck3 without the consent of the owners thereof should remain 
 in such owners, subject tojthe use for which it is taken was 
 
 (1) Debates of the Convention of 1889 pp.1575 f i . 
 (3) Debates of the Convention of 1869 p. 429 
 
-55- 
 
 al 30 uiiiqus in the conotitution of Illinois. Its purpose v/aa 
 to prevent private property from being taken and retained by- 
 railroad corporations and turned to other U3e3 v;hen no longer 
 needed for the purpose for vYhich it vvaa taken* 
 
 It appears, therefore, from the debates of the convention 
 that this whole question of the right of eminent domain and 
 its manner of exercise was considered a question of fundamental 
 importance v/hich had not been sati sf actoriljr dealt with in 
 the past, and which required further action, but the diversity 
 of vieivs as to the changes to be made resulted in a great deal 
 less radical alteration in the v/ording of this important section, 
 than v7ould have suited many members of the convention. 
 
 Since the right of eminent domain exists in every government 
 
 independently of constitutional grant, on the ground of necessity; 
 
 no legislative bargain in restraint of the complete, continuous 
 
 and repeated ex::5rcise of this right is valid or v/ithin the 
 
 protection of the obligation of contracts in either the federal 
 
 (1) 
 
 or state constitutions. 
 
 Private property in this connexion has been defined as 
 
 that dominion or indefinite right of user and disposition '.vhihh 
 
 one may lawfully exercise over particular things or subjects 
 
 (3) 
 
 generally, to the exclusion of others. Every sgecies of 
 property which the public needs may require and which government 
 Cannot lawfully appropriate under any other right is subject 
 to be seized and appropriated under the right of eminent domain^ 
 
 (1) Village of Hyde Park , v. Cemetery Association . 119111 .141 (ISqb 
 
 (2) I . G . ?■ . R . Co . V. Commissioners of HiF.hways 161.111.344 (1836) 
 
in fact le^al and equitable righto of every description, excejt 
 
 money or those ri^chto in ac*:ion -.vhich can only be available 
 
 (1) 
 
 7/hen rriade to jjroduce r.oney. 
 
 Under the present constitution not only the taking of 
 private property but ^ the dariaging qs v/ell mu3t be compen- 
 sated for. Prior to the constitution of 1870, recovery could 
 be had only for direct physical in;iury to property as by 
 by overflowing it, depositing materials upon it etc., and so 
 interference viith the ingress to or egress from property v;a3 
 not required to be compensated for. But under the neN provision 
 inlthis state compensation is to be alloived in all cases, v/here 
 
 but for some legislative enactment, an action r/ould lie at 
 
 (2) 
 
 common law, for tort to property. 
 
 The question of :vhat constitutes a public use, has frequent 
 
 arisen in the courts, but no definite rule can be laid dov/n. The 
 
 necessity or expediency of putting private prpperty to a certain 
 
 use^ is a question wholly for the legislature, though the 
 
 question ^;7hether such use is public or private, will be reviewed 
 (3) 
 
 by the courts. The ordinary functions of government are, of 
 
 coursegj clearly public uses but even private undertakings may 
 
 embody a public use, as in the case of so-called public service 
 
 (4) 
 
 or puolic utility corporations. 
 
 (1) Cooley "Constitutional Limitations." pp.756ff. 
 
 (2) Rigney v. Chic:i^;o . 102 111.64.(1382) 
 
 (3) Dunliam v. Village of Hyde Park . 75 111. 371 (1874) 
 
 (4) Chi car.o R.I, and ^ac . R . n . v. Joliet 79 111. 35 (1875) 
 
-57- 
 
 The construction of drains, ditches and leveeo by land- 
 owners for agricultural, sanitary, or nining purposea across 
 
 th6 landG of others, especially authorized by constitutional 
 (1) 
 
 provision, is also subject to the conditions irnposed on 
 
 the exercise of the right of eminent domain. Sev;era£e and 
 
 other ^Yorks necessary for the abatem.ent of public nuisances 
 
 (2) 
 
 come '//ithin the meaning of a public use whether constructed 
 
 by public authorities or byprivate companies. 
 
 "Just compensation" means compensation to such amount as 
 
 is under all the circumstances a fair and full equivalent 
 
 (3) 
 
 for the thing taken or a reimbursement for real, as 
 
 (4) 
 
 distinguished from merely speculative damages. 
 
 The requirement of a jury in this section embraces all 
 
 i/jthe provisions of section 5 and permits, therefore, a jury of 
 
 (5) 
 
 six to be authorized in trials before justices of the peace. 
 
 HSo also the jury must be one in the selection of which the 
 
 (4) 
 
 party in interest has had an opportunity to participate. 
 
 In general, since the right of eminent doamin, necessary 
 and undisputed thought it be, is, nevertheless, a compulsion 
 on the individual to sell his property, nolens volens. it miust 
 
 (1) Constitution of Illinois, 1870, Art. IV. Sec. 31. 
 
 (2) Jacksonville v. Lambert 63 111. 519 (1872) 
 
 (3) Phillips V. Tov7n of Scales .?lound 195 111. 353 (1902) 
 
 (4) R . R . Co . V. City of Pontiac . 169 111. 155 (1897) 
 
-58 
 
 not be abused, and in its exercise the limitations prescribed 
 
 by the constitution should be strictly observed, and the 
 
 statutes passed in pursuance thereof should be strictly cornpli 
 (1) 
 
 '.vi th . 
 
 (2) 
 
 Section 14. 
 
 Ex post facto la'-'/s, that is, retroactive criminal la'-^s 
 
 (3) 
 
 were considered at aommon lav; al 30 as cruel and unjust. The 
 principle that all la'^s should be made to commence in future 
 Was a fundamental principle of sound legisla':ion in England 
 and has been a basic doctrine of our American conoti tutional 
 law from the very first. Retroactive laws, whether ex post 
 facto laws or laws impairing the obligation of contracts, 
 that is, whether criminal or civil, were ever contrary to the 
 spirit of our insti tut ions, under which life, liberty and 
 property are most jealously safeguarded- The Virginia Bill of 
 Rights, it is true, did not embody a prohibition on such laws, 
 but the Northwest ordinance had forbidden laws violating 
 contract rights and the great majority of states had by 1818 
 adopted such provisions in their constitutions, besides the 
 provisions on this point in the United States constitution. 
 
 (1) Ayer v. City of Chicago . 149 111. S62 (1894) 
 
 (2) "ITo ex post facto law, or law impairing the obligation of 
 contracts, or making any irrevocable grant of special 
 privileges or immunities shall be passed . "Consti tution 
 
 of IlMnois, 1870, Art. II. Section 14. 
 
 (3) Chase's Blackstone, p. 10. 
 
-59- 
 
 The federal conoti tution, it nuat be remembered, .ct only 
 forbids 6oncre33 to pa33 _ex pojt facto lav/a, but expreo.ily 
 forbida the states al 30 to pass either ex pc 3t facto la"'V3 or 
 laws impairing the obligation of contracts. The insertion of 
 these provisions, and the same was also true of the state 
 guarantees of due process after the adoption of amendrr.ent 
 fourteen of the federal constitution into the first constitution 
 of Illinois could, therefore, be of effect only in broadening 
 the protection which the interpretation of the federal provision 
 b' the United States courts might supply. That is, any state 
 act vYhich federal courts would consider contrary to either 
 of these prohibitions as contained in the federal constitutions 
 
 would be wholly bad, whether or not the state courts ir.ight 
 consider it as not violating the identical provision in the 
 state constitution. On the other hand, ho?;evsr, a state act 
 sustained by the federal courts as not contrary to these 
 prohibitions in the federal constitution might still be 
 invalidated by the state courts as violating their interpretatior 
 of the same words in the state constitution. 
 
 Both of these guarantees wer'=^, however, continued in the 
 later constitution of Illinois, and adopted in the constitution 
 ofl870 practically without discussion, being found at that 
 time also in about two thirds of the other state constitutions. 
 
 The prohibition on making any irrevocable grant of special 
 privileges or immunities, was new in the present constitution 
 of Illinois, but very little discussion of this provision took 
 place on the floor of the convention, notwithstanding that it 
 
-60- 
 
 (1) 
 
 could bo found in only tr;o other constitutions of that time. 
 The indi 3criminat9 grantinc of valuable franchiaea^ in corporate 
 chartera made it neceasar-;, under the ruling in the Dartmouth 
 College ca3e that such charters are contracts, to protect 
 the public against corrupt or indifferent legislative bodies, 
 by providing in the fundamental lav/ of the state that such 
 grants could not be irrevocably made. 
 
 In the convention of 1869 it was moved, .Tith a viev7 to 
 remedying the mistakes of the paot, as well as to providing 
 protection in the future, that any amendment made to existing 
 charters of corporations should subject them to future legis- 
 lation, that is, withdrav/ them from the protection of this 
 provision, but this motion was not reported out by the committee 
 to which it ■.•/:',s referred. 
 
 Ex post facto laws are defined in this state to be those 
 
 by which, after an act indiff -rent in itself has been coru-itted, 
 
 the legislature declares it to have been a crime and makes it 
 (2) 
 
 punishable, or those v;hich change punishments to the 
 
 ■^ke. (3) 
 prejudice of y^def endant after the commission bf the crime. 
 
 The entire deprivation of a remedy on a contract, is a 
 
 violation of the protection hereby guaranteed, but tiie modifioati 
 
 (1) Kansaa 1857, Ohio, 1851. 
 
 (2) Coler v. Madison Go . I 111. 154 (1826) 
 
 (3) Johnson v. People 173 111. 131. (18 98) 
 
 The meaning and scope cf the federal prohibition on 
 the passage of ex post facto laws which is directed to 
 the state legi slatur e^ as well as to the National Congress 
 was considered at length in the case of Calder v. Bull, 
 3 Dall. 386. 
 
i 
 
-61- 
 
 (1) 
 
 or substitution of a remedy ia not, nor ia the changinc of 
 
 (2) 
 
 the rules of evidence an impairment of a veated right. 
 
 Lin-.itation la'vo are not bad even if affecting existing rights, 
 
 if a reasonable time is given for the assertion of the right 
 
 (3) 
 
 before the bar takes effect. The legislature may enact 
 
 retrospective statutes to validate invalid contract.-j, or ratify 
 
 acts which it might have authorized in the first place, if 
 
 (4) 
 
 no vested rights "/ill be infringed. 
 
 Charters of private corporations are contracts under the 
 
 (5) 
 
 Illinois constitution as '.veil as the under federal constitution, 
 
 and are subject only to a reasonable exercise of the police 
 
 pov/er of the state, that is, to the inherent ina].i enable right 
 
 to make all reasonable regulations in the interedtB of public 
 
 safety, welfare, health and comfort. So even exemption from 
 
 (7) 
 
 taxation by charter is a contract binding on the state, 
 
 although the taxing gower is a fundamental attribute of governmen ; . 
 
 (1) Hewkirk v. Ch apron, 17 111 344. (1856) 
 
 (2) Roby V. Chicago . 64 111. 447. (1873) 
 
 (3) Bradley v. TightcaP . 201 111.511 (1903) 
 
 (4) Scamir-on v. Commercial Co . 6 111. App . 551. (1880) 
 
 (5) Bruffet v. Great Western R.n. Co. 25 111. 249 (1861) 
 
 (6) Ruggles V. People . 91 111. 856 (1878) 
 
 (7) 111. C.R.R. V. Gccdwin. 94 111. 263. (1880) 
 
if 
 
 ..I 
 
 I. 
 
Sections 15 and 16 . 
 
 The necessity of having the military in subordination to 
 
 the civil power, and the evila of any other relation between 
 
 the twoarms of government, had been early felt in Kngland, 
 
 and a formal request for remedying the abuses of the military 
 
 power was embodied in the Petition of Right of 1628 to Charles 
 
 I, in v/hich it was demanded that the soldiers and sailors 
 
 quartered on the inhabitants in times of peace be removed, an.i 
 
 that the proceedings by martial law instead of 'oy civil lav/ 
 (3) 
 
 be suppressed. Again in the Bill of Rights of 1689 Parliament 
 
 expressly forbade the raising or keeping 6f a standing army 
 
 (3) 
 
 within the kingdom in time of peace without its consent. 
 
 In the period prior to the Ajuerican Revolution, moreover, 
 the colonists had suffered their ov;n experience of the evils of 
 having standing armies quartered upon them, and interfering 7/ith 
 the regular course of justice, and in the Declaration of 
 Independence air,ong the oppressions there described, were the 
 keeping of standing armies in tinies of peace among the coloni its 
 without the consent of their legislatures, the quartering of 
 large bodies of armed troops among them, and generally the 
 
 (1) "The military shall be in strict subordination to the civil 
 power. No soldier shall in tim.e of peace be quartered in 
 any house without the consent of the owner; not in time of 
 War, except in the manner prescribed by law . "Consti tution 
 of Illinois, 1870, Art. II, Sections 15 and 16. 
 
 (2) Stubbs "Select Charters" p. 518 Petition of Right, cap. X. 
 
 (3) Ibid , p. 524. Bill of Rights, clause 6. 
 
I 
 
 I 
 
-63- 
 
 rendering of the military independent of and ouperior to the 
 civil power. 
 
 The Virginia Bill of Righta, therefore, embodied a 
 provision forbidding standing 9*433^ in time of peace, and 
 subordinating the military pcver to the civil pov/er, in all 
 caseo, as did also most of the other revolutionary constitutions. 
 Notwithstanding the fact that these provisions '.vere very common 
 at the time \7hen the first Illinoini constitution '."/as frarr.ed, 
 no mention of them is contained in that document. But in the 
 constitution of 1348, follov/ing t: a precedent of all but 
 three of the t\7enty-eight constitutions then in force, the 
 section subordinating the military to the civil por/er 7;a3 
 inserted, and the present prohibition against quartering 
 soldiers, found also in almost as m.any of the other constitutions 
 of the time, wao added. 
 
 (1) 
 
 Section 17. 
 
 Though the right of the people in a free government, 
 peaceably to assemble an:l to petition the government for 
 redress of grievances, is one which results from the very 
 nature and structure of its institutions, it via.3 nevertheless 
 subjected to repeated attacks by the crovm in England. The 
 right of petition, though no^.v regarded ao a sirnple, primitive 
 and natural right, Has even as late as the reign of James II, 
 
 (l) "The people have the right to assemble in a peacable 
 
 manner to consult for the common good, to make knovj-n their 
 opinions to their representatives, and to apply for 
 redress of grievances." Constitution of Illinois, 1870, 
 Art. II Section 17. 
 
-64- 
 
 sought to be denied in the famous trial of the oeven biahoprj, 
 
 for having attempted to exerci oe this ri ght , and ^therein finally 
 
 (1^ 
 
 vindicated b - their acquittal. The Engliah Bill of Rights 
 of 168S, therefore, after reciting the illegal prosecution of 
 these petitioners to the crown, declares that it' is the right 
 
 of the subject to petition the king, and that all commitments 
 
 (2) 
 
 and prosecutions for such petitioning are illegal. 
 
 This right wa3 generally expressly protected in the early 
 American constitutions, though Story regard3 it as unnecessary 
 to be expressl'ir provided for, ^"^^and the e;irlier constitutions 
 of Illinois guaranteed it in virtual l^r the same terms as 
 are now found in this section of the present Illinois consti tuti 0(1 
 
 (4) 
 
 Section 18 » 
 
 The English Bill of Rights had declared that the election 
 
 (5) 
 
 of members of Parliament ought to be free, and this principle 
 of free and equal elections was again expressly declared in 
 the first American Bill of Rights about a century later. The 
 early constitutions in this country, pretty generally followed 
 the example of Virginia in this regard, and when in 1818 Illinois 
 
 (1) Cooley "Constitutional Limitations." p. 497. 
 
 (2) Stubbs, "Select Charters," p. 523. 
 
 (3) Story on the Constitution, Section 1894, 
 
 (4) "All elections shall be free and equal." 
 
 Constitution of Illinois, 1870, Art. II, Section 18. 
 
 (5) Stubbs "Select Charters." p. 535. 
 
-65- 
 
 expreaaly c^aranteed the freedom and equality of electiona, 
 
 □he adopted the practice prevailing in more than half of the 
 
 existing atate constitutions. 
 
 The provision as found in the early Illinois constitution 
 
 Was retained verbatim, both in the constitution of 13^8 and 
 
 in the present constitution of 1870. Just v/hat practical 
 
 effect '.70uld be given to this section by the Illinois courts 
 
 does not appear, but its general purpose, undoubtedly, is to 
 
 keep every election free of all influences and surroundings 
 
 which minht bear iinproperly upon it, or might impel the electors 
 
 to cast their votes otherwise than as their judgments '.Yould 
 (1) 
 
 /fidictate . 
 
 (3) 
 
 Section 19. 
 
 This general declaration of the protection which should 
 
 be found in the law is practically an ejoitome of the theory 
 
 of the common law, and \i3.'i formulated in substance as early as 
 
 (3) 
 
 the thirteenth century, in the Great Charter of English Libertie 
 Chapter 40 of Magna Charta of King John decl ar es, "v/e will sell 
 to no man, "/e v/ill deny no man, or defer right or justice," 
 asserting a principle r/hich has remained fundamental in the 
 
 (1) Cooley "Constitutional Limitations." p 932. 
 
 (2) "Every person ought to find a certain remedy in the lav/s 
 for all injuries and v/rongs '.'/hich he may receive in his 
 person, property or reputation; he ought to obtain by la'^, 
 right and justice freely and '^-zithout being obliged to 
 purchase it, completely and without denial, promptly and 
 without delay." Constitution of Illinois, 1870, Art. II, 
 Section 19. 
 
 (3) Stubbs "Select Charters." p. 301. 
 
-66- 
 
 Englioh law from that tine to the preaent, and v;hich had been 
 guaranteed in over half the state constitution:] in force r/hen 
 Illinoio v.'a3 admitted to the Union. 
 
 The statement of this principle in the first Illinois 
 constitution -.vas adopted without substantial change in both 
 of the later constitutions of Illinois and stands in our 
 present constitution little different from its first annunciation 
 seven centuries ago. 
 
 Under this provision of the constitution every man has 
 the right to cal"*- upon tb courts to protect hin in his property,, 
 person and reputation and that too v/ithout reference to r:hether 
 other persons are also suffering from the same cause. 
 
 The right of an elector to have the person who has been 
 
 lav/fully elected established in his office is not a right the 
 
 violation of which is an injury to his person, property or 
 
 reputation within this provision of the constitution, and 
 
 Cannot therefore be enforced throurr,h the courts in absence of 
 
 (2) 
 
 a statute conferring such jurisdiction on til em » 
 
 But a statute requiring a plaintiff to sho:? that he has 
 
 paid all taxes, due and assessed on a lot before he can question 
 
 the Validity of a tax title is repugnant to this provision of 
 
 (3) 
 
 the constitution, in that it com.pels him to buy justice. 
 
 (1) Wylie V, Elwood, 34 111. App. 244 (1889) 
 
 (2) nouglas V. Hutchinson, 183 111. 337 (1B9S) 
 
 (3) Reed v. Tyler 56 111. 288 (1870) 
 
-67^ 
 
 (1) 
 
 Section 30 
 
 As a fitting conclusion to the foregoing enur:,eration of 
 the fundanental principles of government, io added this 
 declaration of the necessity of a frequent recurrence to these 
 principles, for preserving the blessings of liberty'', Sinilar 
 declarations were found in oix of the early state constitutions, 
 and in the first constitution of Illinois, from which the 
 provision was continued without change in the subsequent 
 constitutions of the state. 
 
 Such, then, are the principles, in their origin, 
 development, and application V7hich nor; stand as part of the 
 fundamental la^^/ of this cor.monvireal th ; the re.mltants of a 
 large number of factors of varying influence and importance. 
 The manifest qualities of the common law, its no less apparent 
 defects, the doctrines of political theorists, the necessities 
 of political exigencies, ancient constitutional principles 
 and miOdern political developm.ent s, each played some part in 
 formulating the body of declarations contained in the present 
 Bill of Rights; an enumeration of individual rights, on the 
 one hand comprehensive enough to provide an adequate guarantee 
 of personal liberty, without, on the other hand entering into 
 undue philosophical speculation or unwise legislative detail • 
 
 (l) "A frequent recurrence to the fundamiental principles of 
 civil government is absolutely necessary to preserve the 
 blessings of liberty." Constitution of Illinois, 1870, 
 Art . II Section 20 . 
 
-68- 
 
 B I n L I r, R A P T ' Y 
 
 (a) Source "atori al . 
 
 Journal of the Illinoio Conisti tutional Convention, 1818, 
 Springfield. Illinoia State Tliatorical Library, Springfield, 
 Illinois. 
 
 Journal of the Illinois Constitutional Convention, 1847 
 Springfield. University of Illinois Library, Urbana, 111. 
 
 Journal of the Illinois Constitutional Convention, 1862, 
 Springfield. University of Illinois Library, Urbana, 111. 
 Journal>and Debates and Proceedings of the Illinois 
 Constitutional Convention, 1869-18 70, Springfield. University of 
 Illinois Library, Urbana, Illinois. 
 
 Stimson, "Federal and State Constitutions of the United 
 States." 1908. 
 
 Thorpe, "American Charters Con;;ti tutions and Organic 
 Laws." 1909 '^Ifashing- on . 
 
 Stubbs, "Select Ch-.rters Illustrative of English Constitu- 
 tional History." 8th, Ed. Oxford. 
 Illinois State Law Reports. 
 
 Starr and Curtiss, "IlMnois Annotated Stattites" 1896 and 
 Jones and Addington's Supplerrient s, 1903 and 1905. 
 
 (b) Secondary Authorit ies. 
 
 Blackstone's Comirientari es . Chase's Edition. 
 Cooley, "Constitutional Limitations". 7th Ed. 
 Scherger, "The Evolution of /Modern Liberty" 1904, 
 Stephen, "History of the Criminal La"/ of England"1883 . 
 Green's History of England. 
 
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