342.773 coj>.3 Herman G. James. The Preamble and Boundary Clauses of the Illinois Constitution. (1910) 5-33 ^b. cop. 3 ILLINOIS HISTORICAL SURVEY THE PREAMBLE AND BOUNDARY CLAUSES OF THE ILLINOIS CONSTITUTION A i'Al'KK READ BEFORE! THE CHICAGO HISTORICAL SOCIETY JANUARY 18, 1910 BY HERMAN G. JAMBS, J.D. MKMBBB 01- THE II.I.INOIK BAK PUBLISHED BY THE! SOCIETY 1910 THE PREAMBLE AND BOUNDARY CLAUSES OK THE ILLINOIS CONSTITUTION A PAPER READ BEFORE! THE CHICAGO HISTORICAL SOCIETY JANUARY 18, 191O HERMAN G. JAMES. J. D. MEMBER OF THE ILLINOIS BAR PUBLISHED BY THE .SOCIETY 1910 . 173 3-133? PREAMBLE. 1 A study of the preamble of a constitution may prove interesting and instructive to the student of history even though its practical value to a lawyer may be compar- atively slight. It has, indeed, been asserted that a pre- amble is, strictly speaking, without force in a legislative sense being but a guide to, and not the vehicle of, the im- port of a statute. 2 Other writers, however, have awarded to the preamble of a constitution or a statute a larger measure of importance 3 , and the decisions of our Federal Supreme Court contain a number of expressions of opinion on the meaning of the Preamble to the Federal Constitu- tion which have unquestionably been of the greatest significance in the development of the powers conceded by that tribunal to the Federal Government under the Constitution. 4 Nor can it make any difference for our purposes whether the first paragraph of the Constitution of Illinois should be termed an enacting clause rather than a preamble, as has been asserted of the almost iden- tical Preamble to the Federal Constitution, 5 or whether it partakes of the nature of both of these forms, for we 'We, the People of the State of Illinois grateful to Almighty God for the civil, political and religious liberty which he hath so long permitted us to enjoy and looking to Him for a blessing upon our eudeavors to secure and transmit the same unimpaired to suc- ceeding generations in order to form a more perfect government, establish justice, insure domestic tranquility, provide for the com- mon defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the State of Illinois. 2 Lieber, "Hermeneutics, " p. 117, note. 3 Story on the Constitution (4th Ed.) p. 338. Kent's "Commentaries" Lecture XX, p. 460 ff. 4 Chisholm v. Georgia 2 Dallas 419; Martin v. Hunter, 1 Wheaton 305; McCullock v. Maryland, 12 Wheaton 316. 5 Andrews "Manual of the Constitution," p. 44. 177 are here concerned primarily with the origin and devel- opment of the first paragraph in our Constitution, ex- pressly termed by the framers, whether rightly or wrongly, a Preamble. A considerable part of the Preamble to the present Constitution of Illinois is directly traceable to the first Constitution of the state adopted in 1818, the opening paragraph of which contains the following language: ' 'The People of Illinois Territory, etc .... in order to estab- lish justice, promote the welfare and secure the blessings of liberty to themselves and their posterity do, etc ordain and establish the following constitution or form of government." 1 It is seen that all of these clauses have, with some minor alterations, become part of the Preamble to the present Constitution. At the time when the first Illinois Constitution was formed it was already the general practice in the other States of the Union to prefix preambles to their constitu- tions, for of the eighteen states which had adopted con- stitutions before 1818, 8 all but three, Georgia, 1798; New Hampshire, 1792; and Vermont, 1793; had inserted a clause in the nature of a preamble, as had also the Fed- eral Constitution of 1789. Of these sixteen, however, only the Indiana Constitution of 1816,' the Ohio Consti- tution of 1802, and the Federal Constitution of 1789 could have served as models for the Illinois Constitution in this respect as they contain almost the identical phraseology employed in the last named, while the first three clauses mentioned above are to be found in none of the other preambles of that time. 'Debates and Proceedings of the Constitutional Convention of 1869, p. 1889. 2 Delaware, 1792; Georgia, 1798; Indiana, 1816; Kentucky, 1792; Louisiana, 1812; Maryland, 1776; Massachusetts, 1780; Mis- sissippi, 1817; New Hampshire, 1792; New Jersey, 1776; New York, 1777; N. Carolina, 1776; Ohio, 1802; Pennsylvania, 1790; S. Caro- lina, 1790; Tennessee, 1796; Vermont, 1793; Virginia, 1776. Thorpe, "American Charters, Constitutions, and Organic Laws." 178 In all probability the direct prototype of the Illinois Preamble of 1818 was that of the Indiana Con- stitution of 1816 for the "wording is identical in the two, save that in the Illinois Constitution the third person is used instead of the first person, which llatter form was indeed adopted in the original committee draft of the Constitution of Illinois, though subsequently changed by amendment. 1 The Constitution of Indiana hav- ing been adopted less than two years before the Con- stitutional Convention met in Illinois, and being further- more the fundamental law of a neighboring state, closely related in every way, it was naturally the instrument to which the framers of our first Constitution directly looked for suggestions and guidance, even as Indiana had in turn borrowed largely from her elder sister state, Ohio, all three states having, in close succession, been carved out of the original North-west Territory. As regards the actual wording of the Preamble there is no doubt that the Federal Constitution was the ultimate original instru- ment of which all three of the above state constitution preambles were copies. A determined, but unsuccessful effort was made to have embodied in the Preamble to the Constitution of 1818 a recognition of the Deity and of Christ. Ford, in his "History of Illinois" says, "During the sitting of the convention of 1818, the Rev. Mr. Wiley and his congre- gation of a sect called Covenanters, in Randolph County, sent in their petition, asking that body to declare in the Constitution about to be made that Jesus Christ was the head of the government and that the Holy Scriptures were the only rule of faith and practice. "It does not appear," he goes on to say, "by the journals of the Convention that this petition was treated with any attention, wherefore the Covenanters never yet 8 fully 1 Journal of Constitutional Convention of 1818, pp. 16, 42. z Ford "History of Illinois" (1854) p. 25. 179 UNIVERSITY OF 1LLINO IIBRARY recognized the State Government. They have looked upon it as 'an heathen and unbaptized government which denies Christ,' for which reason they have constantly refused to work the roads under the laws, serve on juries, hold any office or do any other act show- ing that they recognize the government. For a long time they refused to vote at the elections; and never did vote until the election in 1824 when the question was whether Illinois should be made a slave state, when they voted for the first time and unanimously against slavery." The actual wording of these petitions, of which there were three in all, as shown by the Journal of the Con- vention of 1818 was slightly different, though substan- tially as stated by Ford. t Two of them were referred to a select committee which was later discharged from the further consideration thereof, 2 and the other, pre- sented four days before adjournment of the convention in August was, on motion of Mr. Cullom, laid on the table "until the fourth day of March next." 3 This agitation, though unsuccessful at that time, had its effect on the consideration of the same general question thirty years later when the second Constitution of Illinois was being framed. Coming now to the Constitution of 1848 we find several changes in the form of the Preamble from that of the Constitution of 1818, which changes were also em- bodied in the Preamble to our present Constitution. A distinct paragraph was made of the Preamble, some of the clauses in the first Constitution were slightly altered to conform to the style adopted by the majority of con- stitutions in force at that time, and four new phrases were added. Three of these viz. ("in order to") (a) "form a more perfect government," (b) "insure domestic tran- quility, " and (c) "provide for the common defense," journal of Constitutional Convention of 1818, pp. 13, 66. 2 Ibid, p. 66. 8 Ibid, p. 66. 180 were evidently taken verbatim from the Federal Con" stitution, for they were to be found in no other state constitutions in 1847, except the last clause which was found in the Alabama Constitution of 1819. 1 The fourth addition, and the most important of the changes, was the present reference to the Deity. It has been seen how the failure of the Convention of 1818 to embody any mention of the Deity in the Constitution of that year was the cause of violent opposition by the Cov- enanters. Yet notwithstanding that fact the report of the Committee on Law Reform in the Convention of 1847 contained a Preamble in which again no refer- ence was made to the Deity, 2 although by this time nine state constitutions had been adopted with some such clause in the preamble. 3 The Preamble was, how- ever, amended by the addition of the present clause containing an expression of thanks and an invocation,* written by Judge Lockwood, 5 and modeled almost ex- actly on the corresponding clause in the Constitution of New Jersey adopted three years before. That the Preamble as finally adopted in the Con- stitution of 1848 met with approval, or at least with no strong opposition, is evidenced by the fact that it was incorporated without the slightest change both into the proposed Constitution of 1862 and into the present Con- stitution adopted in 1870. The Convention of 1862 in- deed adopted the former Preamble without discussion, but in the Convention of 1870 the Preamble was again the subject of various motions, resolutions and petitions l Cf. Alabama 1819, "insure tranquillity,'' and Maine, 1819, "provide for our mutual defense." Cf. also Constitution of Re- public of Texas, 1836. 2 Journal of the Constitutional Convention of 1847, p. 395. 3 Conn. 1818, Dela., 1831, Iowa, 1846, Maine, 1819, Mass., 1780, New Jersey, 1844, New York, 1846, Rhode Island, 1842, Texas, 1845. Thorpe "American Charters, etc." Journal of Convention of 1847, p. 511. 8 Orville Barry, "The Constitutions of Illinois," Illinois Blue Book 1907, p. 522. 181 with respect to the recognition of the Deity, before be- ing finally adopted in its entirety from the existing Con- stitution. One resolution called for a recognition of Jesus Christ in addition to recognizing Almighty God, 1 and was supported by a petition to that effect from divers citizens of Washington County. 2 Another reso- lution again proposed a Preamble omitting all reference to the Supreme Being 3 , while the Committee on the Bill of Rights reported a preamble containing a recognition of both Jesus Christ and Almighty God. 4 A Mr. Goodell, impressed with the dignity of the body of which he was a member, offered the following: "Re- solved, that the Committee on Bill of Rights be requested to inquire into the expediency of prefixing the word "Almighty" to "God," as proposed in the Preamble re- ported to this convention by that, committee, as said phrase clearly implies and asserts that sovereignty exists elsewhere than in this Convention." 5 These various resolutions and reports evoked considerable debate 6 all terminating, however, in a substitute motion to adopt the Preamble to the existing Constitution (1848) in lieu of all pending propositions, which was adopted by the Con- vention. 7 That this demand for an express recognition of the Supreme Being in the fundamental law of the state was not an isolated phenomenon in Illinois, but merely one manifestation of a general growing conviction among the "Journal of the Constitutional Convention of 1869, p. 96. "Debates and Proceedings of the Constitutional Convention of 1869 p. 479. 3 Journal of Constitutional Convention of 1869, p. 179. 4 1 bid, p. 207. 8 1 bid, p. 238. Debates and Proceedings of Constitutional Convention of 1869, pp. 231-235, 276-278. Cf. also Illinois State Journal, Jan. 28, 1870, for a communication on the subject of recognizing Christ in the Constitution. 'Journal of Constitutional Convention of 1869, p. 242. Cf. Illi- nois State Journal, Jan. 25, 1870, for editorial comment on the pro- posed preambles. 182 people of the United States in favor of such a recog- nition, appears firstly from the fact that whereas in 1818 of the eighteen constitutions then in force, only two, viz., Delaware, 1792, and Massachusetts, 1780, had contained a direct recognition of the Supreme Being, other than the references in the requirements of oaths of office and the provision protecting religious freedom found in all the constitutions, by 1848 when such a clause was inserted into the Constitution of Illinois for the first time, nine of the twenty-seven state constitu- tions then in force contained such a clause in the Pre- amble, two of the sixteen states without it in 1818 hav- ing embodied it in subsequent constitutions, viz,, New Jersey, 1844, and New York, 1846. At the present time, moreover, forty-one of the forty-six state constitutions contain a clause similar to that in the Illinois Constitu- tion, and of the remaining five, viz. : New Hampshire, 1792; Oregon, 1857; Tennessee, 1870; Vermont, 1793; and West Virginia, 1872, those of New Hampshire and Vermont are still the constitutions of the earliest period when, as has been seen, only two states contained a clause of that nature. It is interesting fact to note in this connection that in the last Constitutional Conven- tion for Michigan in 1908, no suggestion had been made to insert a clause in recognition of the Deity there having been no such clause in either of the two prior constitutions of that state until a resolution was pre- sented on the floor of the Convention from a Free- thinkers Society in Detroit protesting against any at- tempt to insert such a clause. Very soon thereafter such a clause was reported, and adopted without discussion. The growing sense of the propriety of inserting some recognition of the Deity in constitutions, appears, secondly, in that the Federal Constitution still dating from that early period and having no reference to the Deity has been subjected to considerable criticism on that account, which culminated in 1863 and 1864 during 183 the dark days of the Civil War in three religious conven- tions, one held at Xenia, Ohio, Feb. 3, 1863, one at Sparta, Illinois, three days later and the third in Alle- gheny City, Pa., Jan. 27, 1864, all advocating an amend- ment to the Constitution so as to include an acknowl- edgment of the Deity and of Christ in the Preamble. 1 In conclusion it may be added that at the present time all but three state constitutions, viz.: New Hamp- shire, 1792; Vermont, 1793; and West Virginia, 1872, contain clauses in the nature of a preamble though not expressly so designated in them all. These preambles are as a rule similar to that of the Constitution of Illinois, though with a few exceptions somewhat shorter. Never- theless they display in this respect marked differences, ranging from a full page introduction in the Constitution of Tennessee, 1870, and an extended philosophical dis- quisition on the nature of government, in that of Massa- chusetts, 1780, on the one hand, to the concise two and three line preambles in the constitutions of North Da- kota, 1889, and Oregon, 1857, on the other. Of the two general subjects in the Preamble of the Illinois Consti- tution, viz., the recognition of the Deity, and the pur- poses of the Constitution, the former is dealt with also in all but two of the other state constitutions contain- ing preambles, vis., Oregon, 1857, and Tennessee, 1870, while the latter is included as well in more than half of the present preambles. From the above considerations therefore, it is seen that whatever the legal import or practical significance of the preamble to a constitution may be, it has for a century and a quarter had a recognized place in the form of our American constitutions, from the earliest consti- tutions of 1776 to the most recent ones of 1907 and 1908. 'Cornelison "Religion and Civil Government in the United States," pp. 230 ff. 184 ARTICLE I. BOUNDARIES. * The first public act of any subsequent significance, dealing with the title and jurisdiction to any part of the territory now comprised within the State of Illinois, was the Virginia Charter of 1609. By this Charter James I. granted to the London Company, incorporated in 1609, two hundred miles to the north and two hundred miles to the south of Old Point Comfort, along the coast, and "all that space and circuit of land lying from the sea- coast of the precinct aforesaid, up into the land through- out, from sea to sea, west and northwest." 2 Upon this charter, annulled in 1624 by quo warranto proceedings, Virginia later partly based her claim to the lands lying northwest of the Ohio, including the present State of Illinois. This charter was followed in 1620 by the Charter of New England by which James I. granted to the reor- ganized Plymouth Company of 1606 all the land lying and being in breadth from 40 north latitude to 48 and "in length by all the breadth aforesaid throughout 1 The boundaries and jurisdiction of the State shall be as fol- lows, to- wit: Beginning at the mouth of the Wabash River; thence up the same, and with the line of Indiana to the northwest corner of said State; thence east with the line of the same State, to the middle of Lake Michigan; thence north along the middle of said lake to north latitude forty-two degrees and thirty minutes; thence west to the middle of the Mississippi river and thence down along the middle of that river to its confluence with the Ohio River, and thence up the latter river along its northwestern shore to the place of beginning. PROVIDED, That this State shall exercise such juris- diction upon the Ohio River as she is now entitled to or such as may hereafter be agreed upon by this State and the State of Ken- tucky. 2 Second Charter of Virginia 1609, Thorpe, "American Chart- ers, Constitutions and Organic Laws," v. 7, p. 3790. 185 the main land from sea to sea," 1 which grant there- fore, covered all that part of the present State of Illinois, situated north of an east and west line lying about fifteen miles north of Springfield; that is to say, it included the entire northern half of the present State. Map of Illinois^ showing Boundaries as Prescribed by the Ordinance of 1787, and as Established by the Enabling Act of 1818. The Council of New England then granted in 1628 to a company composed of Endicott and five named associ- ates all that part of New England between three miles north of the Merrimac river and three miles south of the 'The Charter of New England, Thorpe, Vol. 3, p. 1872. 186 southermost point of Massachusetts Bay or of the Charles river, "in length and longitude of and within all the breadth aforesaid, throughout the main lands there, from the Atlantic and Western Sea and Ocean on the east part to the South Sea on the west part." 1 This grant, therefore, did not extend as far south as the lands of the New England Council extended and covered only about the northern one-tenth of the present state, i. e. north of lat. n. 42 2', which is practically the line of the present northern city limits of Chicago. This grant was confirmed by Charles I. in the following year 2 and became the basis of the Massachusetts claims to western lands insisted upon in 1779, this charter having been annulled by quo warranto proceedings in 1684 and a new charter granted in 1691 3 conveying land to the westward as far as the colonies of Connecticut extended in that direction. This last colony held under a sea-to-sea charter by Charles II. in 1662 granting to John Winthrop and associates all lands west of Narragansett Bay, and south of the Massachusetts line and between it and the sea and "in longitude as the line of the Massachusetts colony running from east to west, that is to say from the said Narragansett Bay on the east to the South Sea on the west part." 4 It was this charter, never annulled by judicial proceedings, and not even physically surrendered upon demand of Sir Edward Andros in 1687, which supported the claim of Connecti- cut to that part of what is now Illinois situated between lat. n. 41, which runs a few miles south of Kankakee, and the southern boundary of the Massachusetts claim at 42 2'. 1 Cf. Charter of Massachusetts Bay, 1629; Thorpe, American Charters, etc., v. 3 p. 1847. 2 Charter of Massachusetts Bay, 1629. Ibid., p. 1846. Charter of Massachusetts Bay, 1691. Ibid., p. 1870. 4 Charter of Connecticut 1662, Thorpe, v. I., p. 529. 187 Such then, were the public acts up to the year 1663, purporting to affect the title to lands now part of the State of Illinois. It was not, however, until ten years later that the first white man is known to have set foot within the present territory of Illinois, and the ones thus to claim this country by right of discovery were not as is well-known, Englishmen, but two Frenchmen; the one, Father Marquette the Jesuit missionary, the other Louis Joliet, representing the French government at Quebec. These two men in 1673 descended the Wisconsin river to the Mississippi which they followed down to the mouth of the Arkansas, ascending on their way back the Illinois river to its upper waters, crossing over to Lake Michigan at Chicago. From that time on the Illinois country was entered by a number of French traders and explorers, chief among whom was the famous La Salle. About the year 1700 the French villages of Kaskaskia and Cahokia on the Mississippi river were settled and French coloni- zation slowly continued until the treaty of 1763. * For almost a century, therefore, after Marquette's voyage, the French had by occupation substantiated their claim to title and jurisdiction by the right of discovery. Then at the close of the French and Indian War the King of France was by the Treaty of Paris, 1763, obliged to surrender to Great Britain everything that he possessed on the left side of the Mississippi river, except the town of New Orleans, and the confines of the do- minions of Great Britain were fixed by a line drawn along the middle of the Mississippi river from its source to the River Iberville. 2 By this treaty, therefore, the first international act involving the title to land within the present State of Illinois, there was fixed a 1 Greene, The Government of Illinois, pp. 7. seq, 2 Treatyof Paris, 1763, Gentleman's Magazine XXXIII., p. 121. The Iberville, now called Manshac Bayou, is an outlet of the Mis- sissippi some fifteen miles below Baton Rouge, connecting the Mississippi on the west with the Amite river on the east. See Thwaites "Early Western Travels," v. VIII., p. 338. Also Index. 188 boundary line a part of which has remained the western boundary to the territory now included within Illinois from that time down to the present. Following this treaty, and in the same year there was issued a procla- mation by George III. providing that no colonists should settle west of the watershed for the Atlantic Ocean; 1 all the valley from the Great Lakes to West Florida and from the Alleghanies to the Mississippi being thereby set apart for the Indians. In 1778 title and jurisdiction to the region now partly included in the State of Illinois was again claimed by Virginia as a result of the conquests by George Rogers Clark, who in July of that year under a commission from Governor Patrick Henry of Virginia captured the settlements of Kaskaskia and Ca- hokia, and several other posts in the name of that com- monwealth. 8 Then by Act of Dec. 9, 1778, Virginia or- ganized the county of Illinois, 3 ' comprising all the country north and west of the Ohio river claimed under the charter of Virginia 1609. The last years of the Revolution saw the territory comprised within the present State of Illinois, claimed in whole or in part by as many as five different govern- ments. England had of course not yet surrendered the title and jurisdiction acquired by her from France through the Treaty of Paris. Virginia, as has been seen, claimed the whole of the country northwest of the Ohio upon the double basis of her first charter and subsequent conquest, while Massachusetts and Connecticut, asserted claims based on their early charters. New York claimed a right to the Ohio valley under a treaty from the Iroquois Indi- ans who had asserted jurisdiction over it, while the non- claimant states contended that the lands should belong to the United States as a whole and be at the disposal Annual Register 1763, pp. 208-213. 2 Hildreth "History of the United States," vol. III., p. 260. 3 Illinois Historical Collections, Virginia Series, vol. I., p. 9. 189 of Congress for carrying on the war. Maryland especially denied the claims of the four states to lands in the west and absolutely refused to ratify the Articles of Confeder- ation except on condition that the claimant states cede their claims to Congress. 1 Inasmuch as the refusal of Maryland to ratify the Articles of Confederation on any other basis threatened to defeat the accomplishment of the whole plan, Congress on Sept. 6, 1780, requested a liberal cession to the United States of a portion of the claims of the several states to waste lands in the western country, refusing at the same time to go into the ques- tion of the validity of the various claims asserted. 8 The first state to act on this request was New York when in 1780 she authorized her delegates in Congress to cede to the United States her claims to the western lands. This was done by deed in March, 1781, 3 accepted by Congress in October, 1782, 4 granting all the claim to lands west of a meridian line drawn through the most westerly point of Lake Ontario. Though the claims of New York probably did not extend to any part of what is now Illinois, her ready cession paved the way for similar action by the other states which did lay claim to some or all of the present state. This movement was further hastened by the promise of Congress to erect the lands ceded into distinct republi- can states, and in January, 1781, Virginia surrendered her claim to the country northwest of the Ohio river. 6 In 1783 she authorized the giving of a deed, on certain conditions, which was done in March, 1784. Meanwhile, by the Treaty of Peace in 1783 England had been obliged to surrender her title to the western lands, thus journals of Congress, V., p. 160. 2 Journal of Congress vol. VI., p. 123. "Ibid., vol. VII., p. 36. 4 1 bid., p. 373. 5 Cf. Virginia Act of Cession, Thorpe, ' ' American Charters, Con- stitutions and Organic Laws" vol. II., p. 954. 190 giving the free and undisputed ownership to all of the present State of Illinois south of the Connecticut claim, to the United States. In April, 1785, Massachusetts through her delegates in Congress ceded her claims to western lands to the United States, a followed in Sep- tember, 1786, by a similar cession on the part of Connec- ticut, 2 removing thereby the last of the adverse claims to the country northwest of the Ohio. The year 1787 witnessed the passage of the famous Northwest Ordinance, the first law of the new govern- ment to deal with the political division of the newly acquired territory. Article V. of the Ordinance pro- vided for the formation in the territory northwest of the Ohio, of not less than three nor more than five states. The boundaries of the westernmost state, if three were to be formed, should subject to approval by Virginia whose deed of cession had been conditioned on a differ- ent division 3 be as follows: the rivers Mississippi, Ohio and Wabash, a direct line drawn from the Wabash and Post Vincennes due north to the territorial line be- tween United States and Canada, and by the said line to the Lake of the Woods and the Mississippi, 4 which last line, it may be mentioned, was an impossible one. This Act, therefore, designated the present west- ern, southern, southeastern and also save for a slight change introduced by the Enabling Act of 1818 the eastern boundaries of Illinois, for Virginia subsequently agreed to this division into states of the ceded territory. 6 The Ordinance further provided that" the boundaries of these three States shall be subject so far to be altered that if Congress shall hereafter find it expedient, they journals of Congress, X., p. 91 ff. 2 Ibid. XI., p. 160. Virginia Deed of Cession, 1784. Thorpe, v. 2, p. 957. 4 The Northwest Territorial Government. Thorpe, "American Charters, etc.," v. 2, p. 957. 6 Virginia Act of Ratification, 1788. Thorpe, "American Chart- ers, etc.," v. 2, p. 963. 191 shall have authority to form one or two States in that part of said territory which lies north of an east and west line drawn through the southerly bend or extreme of Lake Michigan." The Ordinance furthermore stipulated that its "articles shall be considered as articles of com- pact between the original States and the people and States in said territory and forever remain unalterable unless by common consent." This enactment passed by the Congress of the Confederation was re-affirmed by the First Congress of the United States in 1789 and changed only so far as requisite to adapt it to the Constitution of the United States. 1 At the commencement, therefore, of our national life under the Constitution we find the present State of Illinois included within the Northwest Territory where it remained until the year 1800. In May of that year the President signed the act to divide the Northwest Terri- tory into two separate governments by making Indiana Territory out of all that part of the territory northwest of the Ohio river, "which lies to the westward of a line beginning at the Ohio opposite to the mouth of the Kentucky, and running thence to Fort Recovery, and thence north until it shall intersect the territorial line between the United States and Canada." Vincennes on the Wabash river being made the seat of govern- ment. 2 This act by which the present State of Illinois became part of the Indiana Territory went into effect on July 4, 1800, from which time no further change of government or organization occurred until February, 1809, when the act was approved for divid- ing the Indiana Territory into two separate govern- ments, to take effect on March 1st of that year. By this act the Territory of Illinois was created Northwest Territorial Government, 1789. Thorpe, "Ameri- can Charters, etc." v. 2, p. 963. 2 2 U. S. Statutes at Large, S3. 192 out of that part of Indiana Territory lying "west of the Wabash River and a direct line drawn from the said Wabash River and Post Vincennes due north to the ter- ritorial line between the United States and Canada, (>1 with the seat of government at Kaskaskia, on the Mis- sissippi river. The boundaries thus established for the new Territory of Illinois were the same as those pro- vided in the Ordinance of 1787 for the westernmost state to be formed out of the Northwest Territory. Meanwhile by the purchase of Louisiana in 1803 the western bound- ary to the Illinois country, then part of Indiana Territory, ceased to be the dividing line between United States lands and foreign soil, and Illinois was finally surrounded on all sides by territory belonging to the United States or some of them. After changing from the first form of territorial government to the representative form in 1812, the Illi- nois country was, in 1817, ready for the most important step open to the inhabitants thereof, to-wit, the forma- tion of a separate state government. Ohio had been admitted as a state in 1802 with the boundaries desig- nated by the Ordinance of 1787 for the eastern state to be formed out of the Northwest Territory (in case more than three were to be formed) with a proviso that if the northern boundary as prescribed by that Ordinance should pass to the south of the mouth of the Miami river, it should, with the assent of Congress, be changed to in- clude the mouth of said river. s In 1816 Indiana was added to the states of the Union with its eastern, southern and western bound- aries as prescribed in the same Ordinance but with its northern boundary ten miles north of the east and west line drawn through the southerly bend of territorial Government of Illinois 1809, Thorpe, "American Charters, Constitutions and Organic Laws," p. 966. Constitution of Ohio 1802, Art. VII., 6., Thorpe, "American Charters, Constitutions and Organic Laws,'' vol. 5, p. 2901. 193 Lake Michigan. 1 Congress added a proviso that the boundaries as determined be ratified by the Consti- tutional Convention of Indiana "otherwise they shall be and remain as now prescribed by the Ordinance" of 1787, whereby it appears that Congress expressly recognized that in so changing the northern boundary of Indiana it departed from the requirements of the Ordinance of 1787 in that respect, a fact worth noting in connection with the Illinois-Wisconsin boundary controversy some thirty years later, which was based on an alleged departure of the same kind in fixing the present northern boundary of Illinois. The Enabling Act for Indiana furthermore provided for concurrent jurisdiction on the Wabash river with the state to be formed west thereof so far as the said river should form a common boundary to both, which provision was not, however, expressly mentioned in the Constitution of Indiana adopted in the same year. In December, 1817, the territorial legislature of Illinois prepared a memorial to Congress praying for leave to form a state government in this territory, 2 which memorial was sent to the territorial delegate in Con- gress, Nathaniel Pope. On his motion a bill was intro- duced to authorize the formation of a new state as re- quested by the memorial, with the northern boundary formed by an east and west line drawn through the most southerly bend of Lake Michigan in accordance with the Ordinance of 1787. 3 On motion of Mr. Pope himself, the Enabling Act was amended as to the boundary pro- visions by fixing the northern boundary at lat. n. 42 30', its present location, and including the quadrilateral in Lake Michigan bounded by the northern line of Indiana,, the middle of Lake Michigan, the parallel n. 42 30', and the continuation of the western boundary of Indiana. Enabling Act for Indiana, 2, Thorpe, vol. 2, p. 1053. 2 Journal of Legislative Council, Dec. 8, 1817. 3 Annals of Congress, 1818, vol. II., p. 1677. 194 of Illinois, Showing Cessions by Virginia, Massachusetts and Connecticut to the United States of the parts of Illinois included in the claims of those States to Western Lands. This amendment as to the northern extent of the state was of the utmost importance both to the State of Illinois itself and, as Mr. Pope at that time prophesied, to the safety of the entire Union. Had the northern boundary been fixed as prescribed by the Ordinance of 1787, the 5tate would have extended only to about lat. n. 41 C 37'. 195 By this amendment, therefore, offered by Mr. Pope on his own responsibility, and without instructions from his constituents, fourteen of the present northern counties 1 including a frontage on Lake Michigan and the present City of Chicago were added the State of Illinois. The Enabling Act was passed as amended without opposition 8 and was approved in April, 1818. Mr. Pope's chief argu- ments for giving Illinois a harbor on Lake Michigan werei (a) the additional security to the Union against a possible desire of the south-western states to break away from the rest, by giving Illinois communication through the Lakes with Indiana, Ohio, Pennsylvania, and New York; and (b) the encouragement of the construction of the Illinois- River-to-Lake-Michigan Canal. How wisely Nathaniel Pope forsaw the future in making Illinois the keystone State of the Union was demonstrated over forty years later when the fate of the Union hung largely on the stand to be taken by Illinois in the War of the Rebellion. What the addition of so much productive territory, agriculturally and industrially, meant to the state is, of course, obvious, and it is small wonder, therefore, that Wis- consin, claiming that under the Ordinance of 1787 the northern boundary line of Illinois was fixed about 61 miles farther south, should have made an effort to recover the territory between the line through the southerly bend of Lake Michigan and the latitude n. 42 30'. And so indeed she did for the ten years prior to the admission of Wiscon- sin as a state in 1848, during which the agitation of this boundary question was revived again and again. On the one hand the advocates of the Wisconsin claim, among them curiously enough, very many of the Illinois citizens living in the disputed territory, contended that the Ordi- nance of 1787 was, as it in terms declared itself to be, a 1 Jo Daviess, Stephenson, Winnebago, Boone, McHenry, Lake, Carroll, Whiteside, Lee, Ogle, DeKalb, Kane, DuPage and Cook. 2 Annals of Congress, 1818, vol. II. p. 1677. 15th Congress, 1st: Session . 196 compact binding upon the United States and the several states and unalterable save with the consent of all parties concerned; that the northern boundary of the southern state to be formed out of the Territory of Illinois was fixed by the Ordinance of 1787 at the line through the southermost point of Lake Michigan; and that the line latitude n. 42 30' having been fixed without their con- sent or that of the people living in the disputed territory was in violation of the Ordinance of 1787 and void. On the other side was the contention that the northern boundary as fixed by the Enabling Act of 1818 was con- sistent with, and not in violation of, the Ordinance of 1787, according to an interpretation of the words of Art. V. which we shall consider in a moment. The two sides to this controversy have been so fully and clearly stated in several publications, 1 and so admir- ably treated in a paper read before this Society by Mr. William Radebaugh some five or six years ago, that it is necessary to refer here only very briefly to the more im- portant aspects. In 1838 the territorial legislature of Wisconsin sent a memorial to Congress protesting against the proposition to limit the Wisconsin Territory by lat- itude 42 30' on the south, and asking that the Territory be extended as far south as the Ordinance of 1787 pro- vided. This was presented in 1839 to the Senate and appears never to have been reported out of the judiciary committee. 2 In 1839 again the Wisconsin Territorial Legislature adopted resolutions, this time calling for a vote on the question of a Constitutional Convention and advocating that the people in the disputed district be invited to express their opinion in the matter and send delegates to a convention if called. This was followed 1 Wisconsin Historical Society Collections, vol. XL, pp. 494-501. "Boundary Dispute between Illinois and Wisconsin." Chicago Historical Society, May, 1904, Radebaugh. "The Beginnings of Illinois," Meese. 2 Wis. Hist. Soc. Coll., supra, n. (1), p. 496. 197 by a series of public meetings in the disputed territory culminating in a convention at Rockford in July, 1840, in which delegates from nine counties declared in favor of the Wisconsin claim and their desire to belong to the latter state. 1 But the people of Wisconsin itself were generally opposed to this movement and in spite of repeated ap- peals by Judge Doty, who became Governor of the Wis- consin Territory in 1841 and who had from the first been a strong advocate of the rights of Wisconsin, nothing further was done until 1842. In June of that year Gov- ernor Doty in a letter to the Governor of Illinois spoke of the disputed district as "one over which Illinois was exercising an accidental and temporary jurisdiction." Finally, after several meetings and ballotings in favor of thsW isconsin claim on the part of the cities in the dis- puted territory in Illinois, and several ballotings against the forming of a state government to include the dis- puted territory, by the inhabitants of Wisconsin Terri- tory itself, a last report was sent to Congress setting forth the claims of Wisconsin to the disputed territory, but was never acted upon by that body. In the Wis- consin Constitutional Convention of 1846 an attempt was made to introduce a provision calling for the deter- mination of this boundary question by the Supreme Court of the United States, but this failed of adoption by the Convention. 2 For a while it had seemed as though serious conse- quences might result from the feeling engendered by the dispute 3 but the matter was forever settled as a living question, when in 1848 Wisconsin accepted as her south- ern boundary the line 42 30'. That this determination 1 Wis. Hist. Soc. Coll. v. XL, pp. 496, 497. *IMd. t pp. 498-501. 3 See Language of Gov. Doty, Wis. Hist. Soc. Coll. XL, p. 500, and that of D. A. J. Upham, a member of Wis. Legis. Council. Ibid. p. 499. 198 of the question, however, did not convince everyone of its justice or even legality appears from Thwaites' conclud- ing remarks on the controversy as late as 1888, to the effect that "Wisconsin became a State in 1848, stripped by the youthful greed of her southern neighbor and po- litical manceuvering in Congress of 8500 square miles of the richest and most populous territory in the entire Northwest. * The supporters of the right of Illinois rested their claim on the ground that the words of Article V. of the Ordinance of 1787 permitting Congress to form one or more states "in that part of the said territory which lies north of an east and west line drawn through the south T erly bend or extreme of Lake Michigan" did not mean that the line could not be put farther north if Congress so pleased. Governor Ford thought the Ordinance of 1787 was not violated by the provisions as to the bound- aries in the Enabling Act. "There is nothing" he writes "In the Ordinance requiring such additional state to be formed of the territory north of that line; another state might be formed in that district of country though not of it, it need not necessarily include the whole. By ex- tending the limits north of the disputed line Congress still had power to make a new state in that district north of it, not including the portion given to Illinois."* Nathaniel Pope himself in offering the amendment changing the boundary seems to have believed it to be in accord with the Ordinance of 1787, for in the same breath, almost, with the proposal of the changed boundary he affirmed the binding nature of the Ordi- nance. 3 Congress, however, clearly realized that the pro- posed boundary was in violation of the Ordinance of 1787, as evidenced by the provisions relating to the Ohio 1 Wis. Hist. Soc. Coll. vol. XI., p. 501. *Ford, "History of Illinois," p. 21. "Annals of Congress, 1818, vol. II., p. 1677. 199 and the Indiana northern boundaries 1 as well as by the express language of the Enabling Act for Illinois, Sec. 4: "Provided that the same (i. e., the state government) whenever formed shall be republican and not repugnant to the Ordinance of the thirteenth of July, 1787 ', except- ing so much of said articles as relate to the boundaries of the States therein to be formed."'*' From this it ap- pears, therefore, that Congress considered the Ordinance of 1787 as not binding upon them and hence that they were free to repeal it if they chose or ignore any part of it by such enactment, as is moreover shown also by the change in the number of inhabitants required for the forming of a state, from sixty thousand in the Ordinance to forty thousand for Illinois in the Enabling Act. There remained, therefore, two important questions unsolved at the time Wisconsin finally accepted the 42 30' boundary line, which stood in the way of a clear claim on her part to the disputed territory; first, was Article V. of the Ordinance of 1787 binding at all on the Congress in subsequent years and, second, if so, did this boundary provision violate the requirements of said Article. Inas- much as the United States Supreme Court was never called upon to decide these questions it must ever remain conjectural as to what the legal determination of the question would have been in that tribunal of last resort. As regards jurisdiction on the Wabash river the Enabling Act provided that Illinois should have concur- rent jurisdiction with Indiana, as also on the Mississippi river with any state or states to be formed west thereof, so far as said rivers should form a common boundary. In August, 1818, the first Constitution of Illinois rati- fied the boundaries assigned by Congress, omitting the provisions as to concurrent jurisdiction mentioned above. At this time six other states of the eighteen having constitutions had inserted a clause defining their 1 Annals of Congress, 1818, v. II., p. 19. 2 Enabling Act tor Illinois, 1818, Thorpe, p. 967. 200 boundaries, 1 though none was to be found in the New England or in the eastern states north of Virginia. In the Constitution of 1848 the references to the boundaries was embodied in a separate paragraph and a few minor changes made in the wording. 2 The most im- portant change from the provision in the first Constitu- tion was the addition of the proviso at the end of the article, relative to jurisdiction on the Ohio river, to the north-west shore of which only Illinois extended, to the effect that "this State shall exercise such jurisdiction upon the Ohio river as she is now entitled to, or such as may hereafter be agreed upon by this State and the State of Kentucky." The Article on Boundaries in our present Constitu- tion was adopted without change from the Constitution of 1848, as was also the case in framing the proposed Constitution of 1862. In closing, permit me to refer briefly to some of the court decisions on the meaning of the Boundary Article which served more definitely to fix the boundaries as de~ fined in the Enabling Act. The western boundary line described as running from the middle of the Mississippi river at lat. n. 42 30' "down along the middle of that river to its confluence with the Ohio river, " has in several cases been held to be the middle of the main navigable channel as usually followed, 3 and though the river may change imperceptibly from natural causes, the river as it runs, continues to be the boundary. But if the river should suddenly change its course or desert the original channel, Ga. 1798, Art. l.;Ind. 1816, Art. XI., 17; N. Car. 1776, XXV.; Ohio, 1802, Art. VIII., 6; Tenn., 1796, Art. XL, 32; Virg. 1776, next to last paragraph. 2 Journal of Convention of 1847, p. 572. 3 .V/. Louis v. Rutz, 138 U. S. 249; Iowa v. Illinois, 147 U. S. 1. The Enabling Act for Missouri, 1820, expressly designated the middle of the main channel of the Mississippi river, as the bound- ary for that State along that river and the Enabling Act for Illinois designating merely "the middle of the river" was held to mean the :same thing. 201 the boundary remains the middle of the deserted river bed. 1 Furthermore, it is the main permanent river that constitutes the boundary, not that part which flows in seasons of high water and is dry at other times. Although the physical boundary of Illinois extends only to middle of the river as denned above, its jurisdiction for entertain- ing suits is concurrent over the whole river with the States of Iowa and Missouri, by virtue of the Enabling Act for Illinois and those for the above two states. 8 So- it was held that Illinois courts could take jurisdiction of a case growing out of a collision near the Missouri shore of the Mississippi river, though beyond the physical boundary of the State, and apply the laws of Illinois to- the settlement of the same. The boundary on the Ohio river is expressly limited by the Enabling Act of 1818 to be along the Northwestern shore, and hence Illinois can exercise no jurisdiction over the Ohio river except by consent of Kentucky. The rights and the extent of territory of Illinois along that boundary have not been adjudicated directly, but in one case 3 involving the boundary between Indiana and Kentucky, the United States Supreme Court, affirming- earlier cases says, "It must be assumed as indisputable that the boundary of Kentucky extends to low-water mark on the northwestern banks of the Ohio river". In another case 4 the same court had said, "When a great river is the boundary between two states and one state is the original proprietor and grants territory on one side only, as was the case when Virginia made its original grant of land it retains the river within its boundaries and the territory granted extends to the low water mark on its side of the river. ' ' This being true of Indiana's rights ^Buttenuth v. St. Louis Bridge Co., 123 111., 536. 2 Thorpe, "American Charters, Constitutions and Organic Laws." 8 Henderson Bridge Co. \. Henderson City, 173 U. S., 592. *Hadley v. Indiana, 5 Wheaton, 379. 202 on the Ohio which were not expressly limited by the Enabling Act for that state; it is a fortiori true for Illinois of which the extent is expressly limited. But with consent of Congress, Illinois might by agreement with Kentucky obtain jurisdiction over the Ohio river and for that purpose the constitutions of 1848 and the present one also, contain a provision regarding such agreement with Kentucky. 1 To make such agreement binding the consent of Congress is necessary 2 though such consent need not be expressed but may be implied. 3 By the Enabling Acts for both Indiana and Illinois, these States are given concurrent jurisdiction over the Wabash river and the decisions relating to the juris- diction of this State on the Mississippi river are equally applicable to the Wabash river boundary. The extent of the territory and jurisdiction of Illinois into Lake Michigan have been judicially declared to include all that portion of Lake Michigan lying east of the main land of the state and the middle of Lake Michigan south of lat. 4230'. 4 Finally, though the northern boundary, which, as we have seen, was the cause of an extended controversy for almost a decade, seems not to have been the subject of judicial opinion, it appears from a letter of Professor John E. Daviess of the United States Coast and Geo- detic Survey, written to the Secretary of the Wisconsin ^ee Art. I., Constitution of Illinois. Though this proviso has now been part of our Constitution for over sixty years, and relates to a matter which would seem to be of considerable importance to this state, no record can be found in the State Department of either Illinois or Kentucky of any at- tempt to come to any such agreement as this proviso contemplates. 1 Virginia v. West Virginia, II Wallace 39. 8 Virginia v. Tennessee ', 148 U. S., 503. Illinois Central R. R. v. Illinois, 146 U. S., 387. In February, 1909, Representative Mann laid before the House of Representatives a plan for a compact between the states of Wis- consin, Illinois and Indiana relative to concurrent jurisdiction on Lake Michigan for purposes of criminal prosecution of offenses committed on said lake. 203 State Historical Society, that the line as it is now marked out by boundary posts does not represent the parallel of 42 30' as the constitution of each state prescribes, "but zigzags to and fro, and should go farther south than it now is, about three-fourths of a mile, in the western part of Wisconsin, and farther north in and east of Beloit." 1 1 Wis. Hist. Soc., Coll., XI., p. 591 n. 204 UNIVERSITY OF ILLINOIS-URBANA 342.773J233P C003 THE PREAMBLE AND BOUNDARY CLAUSES OF THE 30112025294262