Academic journal article Journal of the Illinois State Historical Society

Judicial Decision Making and the End of Slavery in Illinois

Academic journal article Journal of the Illinois State Historical Society

Judicial Decision Making and the End of Slavery in Illinois

Article excerpt

It is generally recognized that among the "free states" of the antebellum United States, Illinois was one of the more conflicted in regard to excluding slavery and involuntary servitude. While known as a "free state," a detailed study of the subject has suggested that, up to the middle of the nineteenth century, Illinois was the most accommodating of the "free" states in regard to slave owners bringing their slaves within its borders, perhaps equaled in this respect only by New Jersey. Indeed, the story of the lingering incidence of slavery during Illinois statehood has been well told from the history of the long term indentures created during the territorial period to the so-called "French slaves" and their descendants (Africans held as slaves of pre-1787 French and Canadian settlers) held in the southwest of the state, and to the variety of circumstances in which slaves were temporarily held in Illinois. It has been pointed out that, when other northern free states from New York to Indiana were eliminating the granting of "comity" that allowed out-of-state slave owners to travel through a free state with their slaves, in 1843, the Illinois Supreme Court explicitly recognized just such a right under Illinois law.1

Indeed, the difficulties that Illinois had with the persistence of slavery in a "free state" began in the earliest time of its territorial period. As a part of the Northwest Territory-land north of the Ohio River ceded by Virginia to the United States in 1784-the territory of Illinois became subject to the 1787 Northwest Ordinance that, by its terms, barred slavery. The well known Article VI of the Ordinance provided in pertinent part that, "There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in punishment of crimes, whereof the party shall have been duly convicted. ..."2 This might have been expected to exclude slavery altogether within the Northwest Territory but this broad exclusionary language was ignored or circumvented in important respects so that, not just in the land that became Illinois, but throughout the southern tier of this Northwest Territory-from Ohio to Illinois - some slave holding lingered. The number of such slaves was never large-one estimate suggests "2,000 to 3,000 blacks who remained enslaved in the Northwest between 1787 and 1848"-but it was clearly in violation of the letter and spirit of the Ordinance and Illinois was the most prominent offender in this regard. Indeed, it has been said that in Illinois, "slavery remained vigorous throughout the territorial period."3

The vigor of slave holding in Illinois was manifested almost immediately upon adoption of the 1787 Ordinance and its slavery ban. Despite the unqualified language in the Ordinance, the slave holding interests in southwestern Illinois who held the French slaves pressed for an "interpretation" that the ban was prospective and did not affect slaves already present. By 1790, this effort had succeeded when the territorial governor, Arthur St. Clair, declared his view that the law was prospective only. St. Clair was never challenged on this by the national government so that, ten years after the Ordinance, "the status of slaves" in Illinois and elsewhere in the Northwest Territory remained largely unchanged.

It was not just the French slaves and their descendants who came to be excepted from the slavery ban of the Ordinance. In 1807, the Indiana Territory (that until 1809 included what became Illinois) legislated to allow slave owners from slave states to bring their slaves into the territory as "indentured servants for a term of years agreed to by both parties." While some considered this 1807 law and the lifetime or near lifetime indentures made under the law to be "disguised slavery"-as we shall see the Illinois Supreme Court would later call it just that-when Illinois was established as a separate territory in 1809, it continued this indenture system even as the separate Indiana Territory had moved to abandon it. …

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