and the Alton Telegraph, the two leading whig newspapers of the State, boldly took ground that the debt never could and never would be paid, and that there was no use to say anything about it.* Very many democrats were in favor of the same course, for fear of losing the power the democratic party already possessed. At a

It was thought to be a very dangerous subject to meddle with. democratic convention which nominated Mr. Snyder for governor, a resolution against repudiation offered by Mr. Arnold of Chicago, was laid on the table by an overwhelming vote of the convention, so as not to commit the party one way or the other. It was evident that this was to be a troublesome question, and a great many of the politicians on both sides were as ready to take one side of it as the other, and their choice depended upon which might finally appear to be most powerful The whigs were afraid, if they advocated the debt-paying policy, the democrats would take the other side, and leave the whigs no chance of ever coming into a majority; and the democrats feared that if they advocated a correct policy, the other side might be more popular, and might be taken by the whigs. I speak only of the leaders of parties, amongst whom on all sides there was a strong suspicion that repudiation might be more popular than taxation."

REORGANIZATION OF THE JUDICIARY.

Partisan Malice and Revolutionary Conduct.-By act of Feb. 10, 1841, the legislature repealed out of office the then 9 circuit judges, increased the number of supreme judges from 4 to 9, and, in addition to their duties as a supreme court and their functions asthe council of revision, imposed upon them all the circuit court business in the State. Since 1835 the supreme judges, relieved of circuit duty, had acted solely as a court of appeals, errors and revision. The present change was a bitter partisan measure, in the language of Gov. Ford, "confessedly violent and somewhat revolutionary."

Three of the four supreme judges were of the whig party—the minority party of the State-while Judge Smith was a democrat. Gov. Ford says: "It is due to truth here to say, that Wilson and Lockwood were in every respect amiable and accomplished gentlemen in private life, and commanded the esteem and respect of all good men for the purity of their conduct and their probity in official station. Wilson was a Virginian of the old sort, a man of good education, sound judgment, and an elegant writer, as his published opinions will show. Lockwood was a New Yorker. He was an excellent lawyer, a man of sound judgment, and his face indicated uncommon purity, modesty, and intelligence, together with energy and strong determination. His face was the true Index of his character. Brown was a fine, large, affable, and good looking man, had a tolerable share of tact and good sense, a complimentary, smiling and laughing address to all men, and had been elected and continued in office upon the ground that he was believed to be a clever fellow."

The State, in the exciting party struggle of 1840, had gone for Van Buren and both houses of the legislature were largely democratic. The supreme court had two years before offended the

*After the pubiication of Gov. Ford's history, in 1834. more than three years after his death, both the Alton Telegraph and Illinois State Journal, formerly the Sangamon Journal, denied having favored repudiation, either directly or in lirectly; that they uniformly opposed it with zeal, and always advocated the liquidation of the entire publie debt at as early a day as the means of the State would justify.-See Illinois State Journal, March 7, 1855.

sense of supremacy of the dominant party, in deciding a case of appointment to office by the governor. Pending before the same tribunal there was still another case fraught with political consequences far graver, which it was thence surmised would also be decided against the party in power. When men are themselves actuated by party feelings and prejudices in everything, they are apt to think others are similarly influenced, no matter what their position or how exalted in public life.

Alexander P. Field was and had been secretary of State, since his appointment by Gov. Edwards, having served through both the administrations of Govs. Reynolds and Dunean. In polities he was a whig, though originally, like Duncan, he had been a violent Jackson man. When Gov. Carlin came into office in 1838, he claimed the power of appointing a new secretary of State without a vacancy existing in that office. The claim was based upon the idea that a secretary of State under our first constitution, like a cabinet officer in the national government, was a confidential adviser of the governor, and for purposes of harmony in such relation, should be of the same political party with his excellency. The governor nominated John A. McClernand, then of Gallatin, to the senate for that office. But the senate, although democratic, by a vote of 22 to 18 passed a resolution, "That the executive does not possess the power to nominate to the senate a secretary of State, except in case of vacancy in that office, and that, inasmuch as the senate has not been advised of any vacancy in that office, the nomination of John A. McClernand be not advised and consented to by the senate." They were further of opinion that the tenure of office might be limited by the legislature; which had not been done, however. During the session, the governor sent to the senate several other names for that office, but all were rejected.

After the adjournment, he again appointed McClernand secretary of State, who thereupon demanded possession of the oflice from the whig incumbent, Mr. Field, but was refused. McClernand then laid an information in the nature of a quo warranto before Judge Breese, in the circuit court of Fayette county, and upon hearing, that court decided in favor of the complainant. Field took an appeal to the supreme court, where the cause was reversed. The question decided by the court, aside from the political or partisan bent given to it, derived importance from the fundamental principle of government involved. Quite an array of able counsel appeared on either side. For the appellant Field, there were Cyrus Walker, Justin Butterfield and Levi Davis; and for the appellee McClernand, S. A. Douglas, Jas. Shields and Wickliffe Kitchell, attorney general. Three separate opinions were written by the judges, Wilson and Lockwood concurring, Smith dissenting, and Brown, being connected by affinity, with the relator, declined sitting in the cause.* Chief Justice Wilson rendered the decision of the court in language clear, cogent and elegant, which is both exhaustive of the subject and convincing in its conclusions. The court decided that the governor had not the constitutional power at his will and pleasure, to remove from office the Secretary of State; that when that functionary was once appointed, the power of appointment was suspended until a See 2d Scam., Ill. reports, p 70.

vacancy occurred; that when the constitution created an office, and left the tenure undefined, the officer held during good behavior, or until the legislature by law limited the tenure or authorized some functionary of the government to remove the officer at will. The constitution was the charter of the governor's authority. All the powers delegated to him, or in accordance with that instrument, he was entitled to exercise and no other. While it was a limitation upon the powers of the legislative department, it was to be regarded as a grant of powers to the others. Neither the executive nor the judiciary, therefore, could exercise any authority or power, except such as was clearly granted by the constitution. In England the king was the source of power, and all rights and prerogatives not granted were adjudged to him, but here the theory is that the people are sovereign and the source of power, and that the executive could exercise only those powers specially delegated to him; and as it was not even pretended that any express grant of this character was to be found in the constitution, it must be denied. A grant by implication could not be maintained, because the enumeration of the powers of a department of government operated as a restriction and limitation of a general grant. "The executive power of the State shall be vested in a governor," was a mere declaration of a general rule. Besides, the power of appointment in case a vacancy existed, was given to the governor conjointly with the senate; and a nomination would not confer office without approval by the senate.

The decision caused a great partisan outery against the "whig court," as it was called. The democrats, largely in the ascendancy in the State, were yet debarred from exercising uncontrolled power and the enjoyment of all the benefits and emoluments of office to which their ascendancy entitled them, by this decision, which proclaimed in their teeth, asit were, the existence of office for life incumbents.

But the other question, still pending and far more important, was fraught not only with preclusion from the secretary's office, but with the danger of losing political control of the State, and consequently all power and patronage. This was the celebrated Galena alien case. The alien vote was nine-tenths democratic, and sufficient in strength-about 10,000-that if precluded from the polls to determine the election in favor of the whigs at the approaching presidential election of 1840. As the McClernandField case was by the unscrupulous boldly charged to be partisan, it was now doubtless believed by many that the court in this case was prepared to violate a plain provision of the constitution. The constitution provided that "in all elections, all white male inhabitants above the age of 21 years, having resided in the State six months next preceding the election, shall enjoy the right of an elector."

The idea had gained currency that suffrage and citizenship were concomitant and indispensable qualifications to constitute a man an elector, and therefore the provision above quoted, if brought to the test before the proper tribunal, would be declared null and void. An agreed case had been made at Galena, where there was a large alien vote concentrated in and about the mining region, between two whigs, one of whom sued the other, who had acted as judge at the August election of 1838, and in that capacity re

ceived the vote of an alien, to recover $100 under the election law of 1829, for the use of the county, which it was supposed would present the constitutional question fairly. The suit was brought in the circuit court at Galena, Judge Dan. Stone, presiding; and as the case was admitted, he, without hearing argument, or probbly giving the question much examination, decided that an alien, unlike a citizen, was not entitled to exercise the election franchise. The decision, when it became public, produced great apprehension in the ranks of the democracy, and steps were immediately taken to bring the case before the supreme court.

In view of the decision in the McClernand-Field case, it was further imagined that that tribunal would affirm the decision be low, and that the remedy was the revolutionary one to reform the supreme court by adding a sufficient number of democratic members to change its political complexion, and thus either avoid the fearful contingency of such a decision, or, if too late for that, to have it overruled. This precedent is not without a tolerably close modern parallel in national affairs.

The case was ably argued in the supreme court at the December term, 1839, upon its merits and continued to the June term, 1840. This was during the heat of the presidential canvass of that year. If the case was now decided adversely to the aliens the State might be lost to the democracy. There was a general apprehension that such would be the decision. And now Judge Smith, the only democrat on the supreme bench, sharing in the apprehension, clandestinely pointed out to counsel a defect in the record, consisting in a clerical error. A motion to dismiss was thereupon founded, because it appeared by the record that the case argued was alleged to have occurred at a time when by the laws of the State, as the court must judicially take notice, no general election could be held, to-wit, on the 6th of August, 1839, the year meant being 1838. For the purpose of correcting the record a continuance was granted to the December term, which put it beyond the presidential election in November, 1840. The achievement of discovering the flaw in the record was accounted a remarkable stroke of legal acumen.

When the case came up finally for decision at the December term, 1840, it was found that the constitutional question upon which it was expected the case should turn, was not really before the court, but simply a question under the election law of 1829: If any judge of election shall knowingly admit any person to vote, not qualified according to law, he shall forfeit and pay to the county the sum of $100; and any person presenting himself to vote, and his qualification be suspected, he shall swear that he is a resident of the county; has resided in the State six months next preceding the election; is 21 years old and has not before voted at that election. The court held that, as it was admitted that one Kyle, upon the reception of whose vote the question was made, possessed all the qualifications required by the affidavit, under the law of 1829, it would have simply been superogatory either to challenge him or to have administered the oath to him; and therefore the court below, in fining the judges of election, erred, and the case was reversed. The broad and important question of alien suffrage under the constitution, did not arise in the case, and no opinion of the court was expressed upon it. Judge Smith, how

ever, not to disappoint partisan expectation, took occasion, in a separate opinion elaborated at great length, to argue the constitutional question, quoting freely from a speech of James Buchanan made in Congress on the admission of Michigan as a State.*

Meanwhile the bill to reorganize the Supreme court was pending before the legislature, and with the rendition of this decision by the court, it was circulated about by the politicians, and boldly charged by Douglas, in a speech made in the lobby of the house, that the main question had been purposely evaded by the court to allay the apprehensious of democrats as to the alien vote, and to conciliate their favor, with the object of defeating the bill.

Douglas," says Gov. Ford, "had been one of the counsel for the aliens, and it appeared from his speech, that he and Judge Smith had been in constant communication in relation to the progress of the case. Judge Smith, (I regret to say it of a man who is no more), was an active, bustling, ambitious and turbulent member of the Democratic party. He had for a long time aimed to be elected to the U. S. Senate: his devices and intrigues to this end had been innumerable. In fact he never lacked a plot to advance himself, or blow up some other person. He was a laborious and ingenious schemer in politics, but his plans were always too complex and ramified for his power to execute them. Being always unsuccessful himself, he was delighted with the mishaps alike of friends and enemies, and was ever chuckling over the defeat or blasted hopes of some one. In this case he sought to gain credit with the leading democrats, by the part he took, and affected to take, in the alien case as he had before in the case of the secretary of State. He it was who privately suggested to counsel the defect in the record which resulted in the continuance in June 1840, and during the whole time the case was pending, with the same view, he was giving out to Douglas and others, the probable opinion of the court. He affirmed that the judges at one time all had their opinions written ready to deliver, and all but himself decided against the aliens; and that the case would have been decided if he had not discovered the aforesaid defect in the record. Upon his authority Douglas denounced the court and brought all these charges against the whig judges, and endeavored to make it appear that they had now onlyevaded a decision for the time being, in the vain hope of stopping the career of the legislature. The judges on their part, denied all these charges; and Judge Smith uniting with the Whig judges, published their denial in the Sangamon Journal newspaper, published at Springfield." Gov. Ford further adds, "and there is now no doubt that the whole of it was false."

In this connection we subjoin the following correspondence:

"HOUSE OF REPRESENTATIVES, SPRINGFIELD, January 26, 1841. “To William Wilson, Theophilus W. Smith, Thomas C. Brown and Samuel D. Lockwood, Judges of the Supreme Court of the State of Illinois:

"Mr. McClernand, a member of this house, (who is now speaking) has made the following statements, in substance, in his speech in favor of the bill to reorganize the judiciary of this State. 'I am authorized to say, and I do say on my own responsibility, if any such responsibility is needed, that the judges of the supreme court prepared an opinion against the right of foreigners to vote at the last June term of that court; but on account of objections made by counsel to a mistake in the record, they withheld their opinions, but did so most reluctantly.

"The opinion has gone abroad that these judges have made the decision recently delivered on the subject of the right of foreigners to vote, in order to defeat the bill under consideration and to prevent these judges from going on the circuit.

"This communication is made to call your attention to the statements, and I think it but due to yourselves that an answer should be made to

* See case of Thomas Spragins v. H. H. Houghton in the Ill. S. C. reports.