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dicial. •'

The population of the State at this time was 34,620.

ILLINOIS AS A STATE.

The first constitution of Illinois provided for a Supreme Court to consist of
R chief justice and three associates, to be chosen by a joint vote of the Gen-
eral Assembly and commissioned by the Governor; and also for such inferior
courts as the General Assembly should from time to time ordain and estab-
lish. It also provided that those judges first chosen to the Supreme Court,
should only hold their offices until the first legislative session after
January 1, 1824.

■nJh^ ^*^^^*' ^^ ^^^^ chosen and organized, consisted of Chief Justice Joseph
Phillips, and Thomas C. Browne; John Reynolds and William P. Foster,
associates.

Judge Phillips had been a captain in the regular army and after his resig-
nation of that office, became the Secretary of State for the Territory of Illi-
nois; being a lawyer and a man of high order of talent, he was chosen to be
Chief Justice. He held this office until July 4, 1822, when he resigned to be-
come a candidate for the office of Governor, against Edward Coles. He was
unsupcessful in this contest and Ford says in his History of Illinois, (*), was
so disappointed that he at once left the State in disgust and ever afterward
resided in the State of Tennessee. Only eleven cases decided during the
term of office of Judge Phillips are reported, so he can hardly be said to have
established a reputation as a jurist. His absence from the first term is
noted. None of the opinions in the cases disposed of during his term are
shown to have been prepared by him.

Judge Browne, who was also a candidate for governor at the election of
1822, held his position upon the supreme bench until the reorganization of
the court under the constitution of 1848, thirty years.

Judge John Reynolds, one of the first associates, is spoken of by John
Moses in his History of Illinois, (t) as a man of great learning, familiar with
the Greek, French and German languages, though he affected and made use
of the language of the common people. He remained a member of the court
until the close of his term in 1825, and was chot-en governor of Illinois
in 1830.

Governor Reynolds was eccentric, but performed services for the State of
the greatest value, especially as a historian.

♦Ford's History of Illinois, 28.
tMoses' History of Illinois. 383.



92

Judge Foster, one of those chosen in 1818, to the supreme bench, seems not
to have created a very desirable reputation. Governor Ford says of him, (*)

"That he was almost a total stranger in the country; he was a great rascal,
but none knew it then, he having been a citizen for about three weeks before
his election. He was no lawyer, never having studied or practiced law, but
was a man of winning and polished manners and was withal a very gentle-
manly swindler from the north part of Virginia. He was assigned to hold
courts on the Wabash, and fearful of exposing his utter incompetency never
went near any of them. In the course of one year he resigned his high office,
but took care first to pocket his salary, and removed from the State. He
afterwards became a noted swindler."

In 1822 Thomas Keynolds, by birth a New Yorker, but no relation what-
ever of John Reynolds, was appointed by the Governor to fill the vacancy
created by the resignation of Chief Justice Phillips, and served until 1825.

Judge Foster having resigned in 1819, Judge William Wilson was appointed
to the vacancy, which position he filled with honor until 1848, a period of 29
years.

The work of this early court is preserved to us in the First Illinois, or
Breese Reports, and besides serving its judicial purpose, is an important
part of the history of the State.

The court as above constituted, was held for the first two years at the old
French capital Kaskaskia, though the government, in all its departments had
entirely passed from the control of the ancient inhabitants, the names indica-
ting their participation, rarely appearing, except as litigants.

The court in 1820 followed the capital of the State to Vandalia, where it
was held until 1839, when it again followed the capital, in its migrations,
this time to the permanent capital city, Springfield.

One of the curiosities of the early court as seen in Breese's Reports, (t) is
that while the court from 1822 to 1824 was constituted of four members, yet
Chief Justice Thomas Reynolds and Associate Justice John Reynolds, did all
the business; at least all the opinions rendered during that time, except an
opinion of three lines by Justice Wilson, to which there was a dissenting
opinion by Justice John Reynolds, of 13 lines, were written and delivered by
the two Reynolds judges, t

Judge Thos. Reynolds served on the court until 1825. In 1828 he emigrated
to Missouri, and was, in 1840, elected governor of that state.

The constitution of 1818 provided that the supreme judges should hold
circuit courts, and tnese judges did until the reorganization of the court in
1825, when the court was reorganized by the Governor and legislature, with
William Wilson as chief justice, and Thomas C. Browne, Samuel D. Lock-
wood, and Theophilus W. Smith, as associate justices.

This session of the General Assembly also created five circuits and elected
as circuit judges, John Y. Sawyer, Samuel McRoberts, Richard M. Young,
James Hall, and J. 0, Wattles, with salaries of $600 each, the supreme
judges getting $800 each. $6,400 a year in all.

The public sense of a wise economy was so shocked at this piece of what
seemed reckless extravagance, that the next General Assembly repealed all
of the circuit judges, except Judge Young who held court in the northwest-
ern part of the State, out of office, and assigned to the four supreme judges
and to Judge Young, the work of holding the circuit court.

There may be more merit in the complaint of the people which caused this
piece of legislation than would appear upon a simple statement of the case,
when we say that only 45 cases came before the supreme court during the
time intervening between 1825 and 1827.



* Ford's History of Illinois. 31.

t Breese' Reports, 15 to 54.

X Note.— These gentlemen are spoken of as brothers by some historians, but I am in-
formed by those who know that they were of no kin whatever.



98

The business of the circuit court was transacted by the four supreme judges
and one circuit judge, Young, tor eight years and until 1835, when another
act was passed providing for eight circuit judges to be chosen by the people.

By an act passed Feb. 10, 1841, (*) all of these circuit judges, or those
chosen in their places, were repealed out of ofiBce. The same act provided for
and added five more judges to the supreme court and assigned the nine
judges to the circuit work in addition to holding two terms each year of the
supreme court.

Sidney Breese, Thomas Ford, Walter B. Scates, Samuel H. Treat, and
Stephen A. Douglas were chgsen to fill up the court as reorganized, t

The new judges at once took their places upon the bench, and, with the
court as thus constituted, the judicial business of the State, both nisi prius
and appellate, was transacted until the adoption of the constitution of 1848.

Changes in the personnel of the court took place. Judge Thomas Ford
was elected Governor in August, 1842, when Judge John D. Caton, formerly
a circuit judge, was appointed in his place. Judge Sidney Breese was
chosen United States senator in 1843, and James Semple was chosen to suc-
ceed him. So Judge Stephen A. Douglas was likewise chosen United States Sen-
ator in 1847, and Jesse B. Thomas, Jr., was chosen as his successor. Judge
Theopilus W. Smith, chosen to the supreme bench in 1825, resigned Dec.
26, 1842, and was succeeded by Richard M. Young, formerly a circuit judge,
who was chosen in his place. James Shields also a circuit judge, was chosen
in the place of Judge Semple, who resigned. The term of appoint-
ment of Judge Caton having expired, John M. Robinson was chosen in his
place and, on the death of Judge Robinson, in 1843, Judge Caton was ap-
pointed to fill the vacancy.

Of the names here given the reader will recognize many who for many
years afterwards, figured very prominently in our State history. Judge
Thomas Ford served the State as Governor with the greatest fidelity, and at
his death left an unpublished history of the State which has since been pub-
lished and is held in the highest esteem.

Judge Sidney Breese, after having served his country in the United States
Senate one term, during which service he was most prominent in the move-
ment which resulted in the building of the Illinois Central railroad, and in the
completion of the railroad to the Pacific ocean, again took up the judicial
service, as one of the circuit judges of the State, from which position he was
again, in 1857, chosen to the Supreme Court, where he served with the ap-
proval of the whole State until his death, June 27, 1878. He was one of the
longest, in years, ot service, upon the bench, of any man in our history. He
served the State in a judicial capacity under its three constitutions — 1818,
1848, 1870.

Judge Breese was a cousin of Samuel Breese Morse, the inventor of the
magnetic telegraph, and both were descendants from an officer of the British
army and navy, who came to this country and died in New York, in colonial
times. X

James Shields was chosen Senator in place of Judjge Breese, perhaps more
on account of military service and a wound he received in the Mexican war,
than on account of his merits. It was said by Justin Butterfield, a witty law-
yer, in speaking of the event of this senatorial election, "The ball that went
clear through Shields, without hurting him, or even leaving a scar, killed
Breese, a thousand miles away."

Judge Samuel H. Treat, chosen in 1841 to the supreme bench, was then a
young man just commencing to practice in the central part of the Scate. At
the reorganization of the Supreme Court under the constitution of 1848, Judge
Treat was again elected to that position where he served until 1855 when he
was appointed by the President of the United States to be district judge in



* 2 Scammon's report V.
t 3 Scammon's report III.
t 53 Harper's Magrazine, 868.



94

the Federal court for the southern district of Illinois, In this position he
served with distinguished ajaility until March 27, 1887, when he died after a
service as a iudge in the Illinois courts of 48 years.

Judge Stephen A. Douglas, whose fame as a statesman makes it unneces-
sary to comment upon his career, served in the United States Senate from
1849 until the year 1861, when he died, greatly to the regret, not only of his
constituency, but of the entire nation. It may be interesting to say here that
his first case in our Supreme Court, of which in 1841, he became a member,
was at the December term, 1835, when as State's attorney, he represented
the people of the State in a case which went up from Morgan county. He
also, at the same term, appeared as attorney in an unofficial capacity.

Judge Richard M. Young was first elected Circuit Judge in 1825, for the
Fifth circuit, which embraced all of the State to the north of the Illinois
river. By re-elections he held this position until 1836, when he was chosen
United States Senator for a term of six years. After the expiration of this
term he was chosen, as above stated, a Judge of the Supreme Court.

Judge Young performed the duties of Circuit Judge when he was compelled,
in the discharge of his duty, to travel from his residence in Quincy, to Otta-
wa, Galena and Chicago, on horseback, when the country afforded neither
roads nor bridges.

Judge James Shields, to whom reference has been made, was in 1849,
elected to the United States Senate in the place of Judge Breese as has been
stated above. He was subsequently a major general in the Federal army
during the war of the rebellion, after which he was chosen as United States
Senator from both the states of Missouri and Minnesota.

Judge Samuel D. Loekwood was elected to the Supreme Court by the Leg-
islature in 1824, and faithfully performed the duties of the position until the
adoption of the constitution in 1848. Before this preferment he was Secre-
tary of State and Attorney General, and was a member of the Constitutional
Convention of 1847. His duties as a judge much of the time required him to
hold the courts of the Springfield circuit, where were employed the most emi-
nent lawyers of the State, as well as to travel through many of the newer
counties. After his retirement he was chosen trustee of the lands of the Illi-
nois Central railroad, and his name appears upon more deeds for Illinois
lands than that of any other man. Moses, in his history, says of him, "No
man stood higher in respect to purity of character, sound judgment and emi-
nent ability." (*) He lived long at Jacksonville and afterwards at Batavia,
where he died April 23, 1874.

Governor Ford says in his history, (t) "The judges in early times in Illi"
nois were gentlemen of considerable learning and much good sense and held
their courts mostly in log houses or in the bar rooms of taverns, fitted up
with a temporary bench for the judge and chairs or benches for the lawyers
and jurors. Much has been said by some of our local historians in derogation
of the learning and ability of the men filling those positions in early times,
and funny stories told of their evasion of judicial duties to avoid making
enemies; but the untarnished record for learning and rectitude left by them
in their report of cases must forever secure their memories against these im-
peachments. Judge Thomas Reynolds would have ranked respectably at any
bar in the United States." t

The reason underlying the reorganization of the supreme court in 1841, as
above set forth, is given by Governor Ford in his history (§) as due to a
suspicion on the part of the dominant party that a case then pending before
the supreme court, involving the right of an unnaturalized citizen to vote at
the approaching election would be decided adversely to the dominant party.
"This affair," says Governor Ford, "made it desirable that the supreme
court should be supplied with a majority favoring a decision in favor of un-
naturalized foreigners as voters at the elections in Illinois." So the act



* II Moses' History of Illinois, 551.

t Ford's history of Illiuois, 86.

X Ford's history of Illinois. 86.

g Ford's history of Illinois. 220.



95

passed the legislature repealing out of office all of the circuit judges, then in
service, aud adding to the number of the supreme judges, five gentlemen of
approved political inclinations who with Judge Smith upon the bench, made
a clear majority of three in favor of the foreigner.

Among the most difficult matters the early courts were called upon to de-
cide were the many questions involving grants of land made to individuals,
by the different governments which had held jurisdiction over Illinois since
the first settlement of the French. This work was by no means fully com-
pleted by these early courts, for, since the establishment of the supreme
court of Illinois, as its reports of adjudicated cases show, this has been a not
inconsiderable source of litigation, and may continue so to be unless quieted
by our limitation laws. *

The want of sufficient jails, or in most counties, of any jails whatever, was
a great evil in those early times. "For the first ten years of the State,"
says Brown in his history of Illinois, "I do not recollect of but one jail that
would hold a criminal against the law, and that was at Belleville." The
offender could not be detained to await trial and the uncertainty of the legal
punishment ot criminals led to the formation of bands of regulators, who ad-
ministered certain and speedy justice.

As has been said above, the volume of reports prepared by Sidney Breese,
the first reporter of the Supreme Court, was published in 1831; printed by
Robert K. Fleming, Charter street, Kaskaskia, and contained 336 pages. The
reporter said in his preface that it was "submitted with great diffidence."

The constitution of 1848. provided for the division of the State into three
grand divisions, in each of which one supreme judge should be elected, the
first terms of office to be determined by lot, and after that the term to be nine
years. It also provided for the holding of one term of this court in each of
these grand divisions each year. The law subsequently fixed the bounds of
these divisions and the places of holding the courts, as at Mt. Vernon,
Springfield and Ottawa. The December term, 1848, the first term held under
the constitution of that year, was held at Mt. Vernon.

The courts of Illinois, like all other human courts, are now and always have
been, as free from the baneful influences of human passions as those of other
peoples, and probably no more so. Party politics has its innings, and the
pull of party favorites has not at all times been absent from our highest
courts. Conspicuously true was this condition of things in our Supreme
Court about the year 1840, when the good Governor Carlin desired to replace
an old office holder in the position of Secretary of State with one of his own
way of thinking, as to the relative value of Whig and Democratic counsels.
He claimed the right of removal as his, in the case of the Secretary of State.
His nominee being refused possession of the office, brought suit for the office
and its emoluments, and was refused the position by a strictly party vote of
the members of the court, where a majority of the members were Whigs, and
unfriendly to Democratic aspirants to office. This fact, when discovered by
the Democratic majority of the State, made a reconstruction of the court
necessary in view of a question then pending in the court, or likely to be
brought before it, as to the right of unnaturalized foreigners to vote at elec-
tions in this State. With three Whi^s and but one Democrat in the court, it
became certain that 10,000 Democratic votes would be ruled out at the next
election, which might change the vote of the State.

A bill was introduced into the Legislature abolishing the offices of the nine
circuit judges and providing for the addition of five judges to the Supreme
Court, who, with those already upon that bench, should hold the circuit courts,
in addition to the work of the Supreme Court. Of course the measure was
somewhat revolutionary; but the necessity for its passage was upon the ma-
jority, and it passed and was approved by the Governor. Thus the court,
with its five additional members, was of a composition to do to the foreign
born voter no harm, and the new Secretary of State was secure in his
office, t



Moses History of Illinoia. 199.
Ford's History of Illioois. 219.



96

It is not the purpose here to criticise any one's motive or action, but rather
to detail a portion of the history of our courts.

Two of the members of our Supreme Court have been treated to some ex-
perience under the clause of the constitution, which provides for the removal
of judges of the court by impeachment.

Jud^e Theophilus W. Smith, who became a member of the court in the
year 1825, brought down upon his head enough of opposition in eight years of
service to provoke charqres of malpractice and corruption in office at the hands
of the lower house of the General Assembly, which were duly brought before j
the Senate, as the high court of impeachment, at the session of 1832. Benja-
min Mills, John T. Stuart, James Semple, Murray McConnei and John.
Dougherty, prosecuted upon the part of the house, and Judge Smith was de-
fended by Sidney Breese, Thomas Ford and Richard M. Young. The trial
lasted for more than a month and resulted in an acquittal, less than a major-
ity of two-thirds voting for a conviction.

The other prosecution was instituted by the House of Representatives
against Judge Thomas C. Browne, who was one of the first judges chosen in
1818. and in spite of much opposition remained upon the bench until legislated
out of office by the constitution of 1848. An authority says of him, that ''He
was kind and gentlemanly in his deportment, and friendly to all, but pos-
sessed no legal attainments, and was utterly unfit for the high and responsi-
ble position which he occupied." In short, that he was simply incompetent.
At the session of 1842 three charges of incompetency were presented to the
Senate against this judge of 24 years service upon the highest court
of the State, who had twice been chosen by the Grovernor and Genera! As-
sembly, by the House of Representatives represented by Thomas Drummond,
S. C. Hempstead, Thompson Campbell and A, L. Holmes. The Senate, how-
ever, declined to examine the charges. *

Under the constitution of 1818, judges were suspected of political bias, so,
to place them above any such influences, the constitution of 1848 fixed a day
for the election of supreme and circuit judges apart from the election of other
officers. This precaution was also followed by the framers of the constitu-
tion of 1870. The measure seemed to be effective for 25 years or more, but
for more than a quaiter of a century since then and up to this time politics
has held control in all judicial elections in the State, no judge, of whatever
grade, having been chosen during that time, except as the nominee of a party
convention. It cannot be said, however, that the quality of our judiciary
has suffered.

Under the constitution of 1848, which provided for a Supreme Court of
three judges, one to be chosen from each of the three grand divisions, and for '
circuit judges, one for each circuit, Judge Lyman Trumbull was chosen from
the first, or southern grand division. Judge Samuel H. Treat from the sec-
ond or central grand division, and Judge John D. Caton from the third or
northern grand division, at the election of September 4, 1848. Judge Trum-
bull resigned in 1853. He was succeeded by Judge Walter B. Scates, the
same year, and he in turn was, in 1857, succeeded by Judge Sidney Breese,
who remained in this position until his death in 1878.

Judge Treat, upon his resignation in 1855, was, the same year succeeded
by Judge 0. C. Skinner, and he in 1858 by Judge P. H, Walker, who served
until his death in 1876. Judge Caton, after a long service upon both benches,
resigned in 1864, when for a few months, his place was ably filled by Judge
Corydon Beck with; but at the election of that year Judge C. B. Lawrence
was chosen successor. He filled the position one term of nine years.

Of the judges above named as chosen under the constitution of 1848,
Judges Walker and Lawrence were in office at the adoption of the constitu-
tion of 1870 and were not displaced by it; but to their number were added
that year; v^ith Judge Breese, whose term expired by limitation, with the
constitution under which he was chosen. Judges John M. Scott, William K.

* Bench and Bar, by J. C. Conkling, 45.



97

McAllister, Anthony Thornton and Benjamin R. Sheldon, who constituted
the Supreme Court, made larger in numbers by the addition of the four last
named, by the new constitution.

These gentlemen, with their successors in office, have fully sustained the
high position in public esteem won by the court before they came to the
bench, besides winning new laurels for the individuals, chosen from time to
time.

The work of this court since 1818 is shown by 193 volumes of its reports,
which, on account of the high character of their legal literature, give to the
court a position among similar bodies, second to none.

The student of these reports will be struck by the great diversity in the
character of the questions decided by the court, comparing the earlier with
the later periods of its history. In the earlier history ot the State, say up to
1850, few questions, save such only as might be expected to arise in a purely
rural community, came before the court for consideration. Since then grsat
railroad corporations have built 10,000 miles of railroads, and manufacturing
and mining enterprises have spread to every county. Litigation in the court
well shows the changed character of the populations and industries, if noth-
ing else indicated it. The great questions involved under our drainage,
transporation, manufacturing, banking and commercial statutes, almost un-
known to the earlier court, have been met and satisfactorily settled by this
court.

Since July 1, 1877, the appellate work of our system of courts ha?, within
prescribed bounds, been shared with the Supreme Court, by four Appellate
Courts, made up by the assignment, by the Supreme Court, of three circuit



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