Judicial Decision Making and the End of Slavery in Illinois

It is generally recognized that among of antebellum United States, Illinois was one of more conflicted in regard to excluding and involuntary servitude. While known as a a detailed study of subject has suggested that, up to middle of nineteenth century, Illinois was most accommodating of states in regard to slave owners bringing their within its borders, perhaps equaled in this respect only by New Jersey. Indeed, story of lingering incidence of during Illinois statehood has been well told from history of long term indentures created during territorial period to so-called slaves and their descendants (Africans held as of pre-1787 French and Canadian settlers) held in southwest of state, and to variety of circumstances in which were temporarily held in Illinois. It has been pointed out that, when other northern free states from New York to Indiana were eliminating granting of comity that allowed out-of-state slave owners to travel through a free with their slaves, in 1843, Illinois Supreme Court explicitly recognized just such a right under Illinois law.1 Indeed, difficulties that Illinois had with persistence of in a state began in earliest time of its territorial period. As a part of Northwest Territory-land north of Ohio River ceded by Virginia to United States in 1784-the territory of Illinois became subject to 1787 Northwest Ordinance that, by its terms, barred slavery. The well known Article VI of Ordinance provided in pertinent part that, There shall be neither nor involuntary servitude in said territory, otherwise than in punishment of crimes, whereof party shall have been duly convicted. ...2 This might have been expected to exclude altogether within Northwest Territory but this broad exclusionary language was ignored or circumvented in important respects so that, not just in land that became Illinois, but throughout southern tier of this Northwest Territory-from Ohio to Illinois - some slave holding lingered. The number of such was never large-one estimate suggests 2,000 to 3,000 blacks who remained enslaved in Northwest between 1787 and 1848-but it was clearly in violation of letter and spirit of Ordinance and Illinois was most prominent offender in this regard. Indeed, it has been said that in Illinois, slavery remained vigorous throughout territorial period.3 The vigor of slave holding in Illinois was manifested almost immediately upon adoption of 1787 Ordinance and its ban. Despite unqualified language in Ordinance, slave holding interests in southwestern Illinois who held French pressed for an interpretation that ban was prospective and did not affect already present. By 1790, this effort had succeeded when territorial governor, Arthur St. Clair, declared his view that law was prospective only. St. Clair was never challenged on this by national government so that, ten years after Ordinance, the status of slaves in Illinois and elsewhere in Northwest Territory remained largely unchanged. It was not just French and their descendants who came to be excepted from ban of Ordinance. In 1807, Indiana Territory (that until 1809 included what became Illinois) legislated to allow slave owners from slave states to bring their into territory as indentured servants for a term of years agreed to by both parties. While some considered this 1807 law and lifetime or near lifetime indentures made under law to be disguised slavery-as we shall see 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 separate Indiana Territory had moved to abandon it. …

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