ELMER GERTZ

The Black Laws of Illinois

Chicago Attorney Elmer Gertz has been the recipient of
numerous awards and citations for public service, the latest
(earlier this year) being the Third Annual Civil Liberties
Award of the Illinois Division of the American Civil
Liberties Union, as "counsel for the defense, for exemplary
service in the causes of literary freedom and equal justice
under law." Early next year the Follett Publishing Company
will issue the latest of his books, A Handful of Cases, and the
next few months will see the publication of four other
books to which he has contributed chapters. Among his
other writings are a number of articles for this Journal,
including "Charles A. Dana and the Chicago Republican"
(Summer, 1952) and "Three Galena Generals" (Spring, 1957).
TO UNDERSTAND the so-called black laws of Illinois,
one must cast a backward glance at the situation elsewhere,
and particularly in the states of the South, which, from the
moment of independence, and even earlier, passed bodies
of laws (the Black Codes) governing every aspect of the
lives of slaves and colored people generally.
1
Here and
there one might find differences in the laws from state to
state, but the pattern was a similar one, and rigid in philoso-
phy. The basic point of these laws was that slaves were not
I!!.rsonL (as were even the most degraded white men) but
pro erty: this was the principle later embodied by- the
United States Supreme Court in the Dred Scott decision.
A second, almost equally important point was that Negroes
1. The summary of the black laws of the South and the country generally
is derived from the standard histories of slavery in the United States -
particularly John Hope Franklin's From Slavery to Freedom: A History of
American Negroes (New York, 1947), Chaps. VI and XIII especially. The
commentary and conclusions are mine. Franklin's work and others similar
to it should be consulted for all material herein up to n. 2.
454
ELMER GERTZ
usual to capitalize the word) , even if emancipated
way (and the way was limited), were distinctly dif-
the white population and had to be subordinated
fashion that they would never be tempted to think
as coequal. As property, the ownershi i!1
to be b as an inherently dan-
of property, the law was to go to great and even
lengths for such protection.
. decent people made few apologies for the legal
even the most savage. Their viewpoint was
like that of generally kind people who go to the bull-
a professional boxing match or even the vicious con-
""n'TPpn gamecocks, and applaud the bloodthirsty dis-
You may be exempt from ordinary charity if you
up to think that a black object who talks, eats,
sings, breeds, and, above all, works and appears, at
superficially, like a white person is somehow a piece of
and not a man. Today this is almost impossible
and many sensitive people even then were shocked
callous attitude, but not your ordinary man, whether
was a clergyman, schoolteacher, merchant, or farmer.
brief, slave had no standing in the courts. He could
sue or be sued; he could not testify (except against his
kind - another slave or a free Negro) ; his oath was not
. He could make no contract; he could own no prop-
(except in some states where he could possess certain
personal items) ; he could not touch a white person,
in self-defense; if he were Killed without cause or provo-
it was not' considered murder, although, like the rape
a female slave, it might be regarded as an injury to prop-
like squashing a carton of eggs or invading another
land.
-1
The Black Codes were based upon an obsessive fear of (
insurrections and were generally tightened up and
after any such uprising. They were intended to
the white population and to keep slaves in line
455
THE BLACK LAWS
docile workers. Slaves could not leave the master's abode-
be it plantation or town house - without permission. This
proviso could be enforced by any:'white person, whether or
not he was a police officer. Of course, slaves could not
possess firearms or other deadly weapons, the presumption
being that they would use them upon their masters or others.
In some places there was fear that if slaves were raucous or
playful, trouble might ensue, so they were not permitted to
play percussion instruments or use other noisemakers. They
had to keep themselves aloof from the white community;
they could not buy or sell merchandise, visit or entertain in
white habitations. Of course, groups of them could not
of the presence of hit eople, for fear
that this would lead to racial incidents.
Under such restrictions - as in our poorly managed prisons
- it was only natural that infractions of the rules would
occur. How were these to be treated? Here again the
prison analogy might be made. What passed for a trial
might take place before special slave tribunals, but seldom
in the regular courts. Rarely were there the safeguards
that are traditional in the Anglo-Saxon world since the time
f
Of the Magna Carta. The punishments were swift, certain,
and severe, and ranged from whipping, branding, and im-
prisonment to death - the only restraint being the occasional
unwillingness to depreciate the value of such property. After
all, a dead or imprisoned black man could not work, could
not produce the values that were expected of him. At other
times, sheer fright caused the white community to maim and
destroy such property, regardless of the financial results.
This was especially true at times of stress.
A principal means of assuring the subservience of slaves
was the "patrol," a sort of militia. Counties were divided
into convenient patrol areas, and each white man was re-
quired to serve in his area for a period of time that might
run into months. These patrols apprehended runaway or
suspicious-looking Negroes, and snooped around their places
ELMER GERTZ
and assembly in order to pick up deadly weapons
the drift of dangerous conversation or plotting. Some
y served as members of the patrols; others bought
out or paid fines for failure to perform their duties.
of emergency, vigilante groups would arise; these
kill or maim without bothering with such refinements
or fairness. Violence has always been ingrained in
character, and is at its worst when race preju-
an added element.
not be assumed that the Black Codes were in-
enforced. They were sometimes in being rather
in force. There was always a feeling on the part of
Illav'eh()lOllllg planters that they could take care of "their
niggers"; it was always the other fellow's men that they
southern BlaclL Codes were taken over almost com-
-in Illinois and other northern states, including the
New England region. ,The situation should
been in Illinois because the language of the
which created the..Northwest Territory, of which
was a part, forever forbade slavery arl"d sought to
universal freedom and democracy. 2 But Illinois
state in J2oJ2ulation and traditions, and even where
people were Yankees or European in origin, there was
disquietude about the mere presence of the black man
their midst. /
The early French settlers introduced slave holding into the /
. region, and the English continued the practice.
3
the French, slaves were considered to be real prop-
,like the land and houses.
4
They were generally treated
gently, almost as one would handle a favorite horse. On the
2. ) See N. Dwight Harris, The History of Negro Servitude in Illinois and
"fie Slavery Agitation in That State, 1719-1864 (Chicago, 1904), 6 ff.
This book, now long out of print, is an invaluable work, to which I must
acknowledge great indebtedness. Wherever no other reference appears, this
work has generally been consulted.
3. Ibid., 2 ff.
4 Ibid., 3
457
THE BLACK LAWS
Sabbath and on religious festivals they were given a degr
of liberty; and, unlike the situation later, the slave child
were taught the catechism. The management of the f
plantations was fair and friendly. The Black Codes h
not yet evolved, and their rigidity was absent.
The English government did not restrict slaveholding, an
when the territory came under the control of the Unit
States, slavery was unhampered.
5
As the population gr
and the number of Negroes multiplied, it became appar
that the laws would tend to confirm the more severe prac
tices of the more hardened taskmasters.
Thus, when Virginia ceded her claims to the Northw
Territory, she stipulated that the French, Canadian, and
other inhabitants of the area should be permitted to keep
their possessions and retain their old privileges.
6
Congre91
guaranteed this in the Ordinance of 1787, but also inserted
a clause prohibiting slavery in the territory, to the alarm
of the residents, some of whom considered moving across
the Mississippi River into Spanish territory. But the terri
torial governor interpreted the clause as merely preventing
the introduction of new slaves, and not requiring the freeing
of those already there.
7
In time, the views of the governor
prevailed, and the Ordinance of 1787 was held to be without
effect on the relations between what were euphemistically
styled masters and servants.
J Ninian Edwards, 8 who was regarded as a very fine lawyer,
( and who became governor of Illinois Territory in 1809,
\ declared that the ordinance sanctioned "voluntary" servi
tude - that is, Negroes could be indentured for limited peri.
l
ods. He wanted the term to be reduced to one year, and
thought that such contracts were "reasonable within them
selves, beneficial to the slaves, and not repugnant to the
5 Ibid., 3, 4
6. Ibid.,6.
7. Art. VI bf the Ordinance of 1787; see Clarence Edwin Carter, ed.,
The Territorial Papers of the Unit ed States (Washington, 1934- ), II:
49; and Harris, Negro Servitude, 6.
8. Harris, Negro Servitude, 7.
45
8
ELMER GERTZ
interests." Ordinary people, lacking the Governor's
simply said that, since the French had the right to
their slaves, those who followed them as settlers had
right.
laws were passed with respect to slavery during the
legislative sessions of the Northwest Territory,
for the levying of a tax on all adult Negroes in con-
the property concept.
9

became necessary to clarify the legal status of I
Negroes and to regulate their relations \
their masters.
10
The Governing Council drew up a
code, largely derived from the codes of Virginia and
11 This_corle 1805 and 1807, and
of the system of indentures.
u
.-
the codes all male Negro;; under fifteen years of
had to serve until they were thirty-five years old; women,
until thirty-two. The children born to indentured per-
could be bound out - males for thirty years and females
twenty-eight. Slaves brought into the territory had to
their contractual terms, but the owners had to register
"servants" with the county clerk within thirty days
entering the territory. Slaves could be transferred,
they gave their consent and acknowledged it before
notary public. It would be interesting to learn how such
were induced in those cases where there was no
love lost.
In time, provisions were enacted as to the duties of mas-

10. ___ \ ( {q _ .(ok 4czwcJ; (LC (( - 4-(,.3)
Ibid. Wherever in this article reference is made to territorial laws.
staZtes, session laws, or constitutions, the full text thereof, summarized and:
commented upon herein, is set forth in the official document itself, to which
reference is had. See also Harris, Negro Servitude; D. W. Lusk, Eighty
Years of Illinois: Politics and Politicians ... , 1809-1889 (Springfi eld, Ill.,
1889),329-53; Mason M. Fishback, "Illinois Legislation on Slavery and Free
Negroes, 1818-1865," Transactions of the Illinois State Historical Society, IX
(194); 4
1
4-32. See the official documents listed on pp. 246, 247, 249, 250,
252,253, 254, and 255 of Harris, Negro Servitude.
13. Harris, Negro Servitude, 7-10; see also n. 12.
459
THE BLACK LAWS
ters to their servants. They had to provide decent f
clothing, and shelter. Each "servant" had to be given'
coat, waistcoat, a pair of breeches, one pair of shoes,
pair of stockings, a hat, and a blanket." No penalties w
provided for deficiencies, nor was anything said about r
placements. The laws represented pious hopes and we
grounded in a kind of hypocrisy that necessarily attached
an institution that hurt the consciences of some sensitive m
There were other provisions for the whipping of b
servants. These, we may be sure, were enforced. At Ie
a verbal attempt, however, was made to guard the "serv
ants" from mistreatment. The county courts were enjoin
to punish all masters guilty of cruelty and the like; but i
is doubtful that many could be proved guilty, in view of th
inability of the Negroes to testify against them.
These servants could not serve in the militia, nor could
they have bail when arrested, nor could they engage in "un
lawful assemblies" (in effect, all assemblies of Negroes were
unlawful) ; they could not absent themselves from the plan.
tations or abodes of their owners without a special pass of
some sort. If any slave refused to serve his master when
brought into Illinois, he could be removed to any of the slave
states as "property" within sixty days. Thus, Illinois was
not too gradually creating its own Black Code.
The traffic in slaves was open. There were public notices
and advertisements of Negroes offered "for sale" or "want
ed." Business establishments engaged in the traffic without
concealment. At the worst, the settlers in southwestern Illi
nois crossed the Mississippi or the Ohio to purchase slaves.1i
The slavery question became a burning public issue in
connection with formulating the Constitution of 1818. As
the time for the convention approached, the holders of
indentured servants, once so confident, began to be fearful
of their position. Those who loathed slavery, even when
disguised by an indenture system, began to speak out. Illi-
I4. Ibid., I3 if.
460
ELMER GERTZ
would not be admitted into the Union unless it abol-
slavery in all forms - at least, in words. The shrewd
holders of indentured servants and their political spokesmen
decided that the necessary verbal gloss should appear in the
constitution; then later, when Illinois was safely in the Union,
they would re-enact the black laws and perhaps strengthe
them. They tried to maintain secrecy, but their plans were
as transparent as their motivations. But would the other
side see through them ?15
Generally speaking, the delegates to the convention were
of three turns of mind: those who wanted a proslavery con-
stitution, without inhibition; those who were utterly op-
posed to slavery and wanted the constitution to spell out
their viewpoint without ambiguity; and, finally, those "com-
promisists" who wanted to maintain the existing system of
indentures, under a constitution that only appeared to be
free. As almost always, the compromisists were the strong-
est, and they prevailed in the end, because they persuaded
men of opposite views that this was the best that could be
obtained in the circumstances.
16
It was at about this time
that the German philosopher Hegel wrote of a synthesis of
opposites. These men were not so subtle, but they had the
instincts of all children of the age.
Article VI of the Constitution of 1818 embodied the
compromise that was thus worked out. The first section of
it reads:
Neither slavery nor involuntary servitude shall hereafter be intro-
duced into this state otherwise than for the punishment of crimes
whereof the party shall have been duly convicted [Notice the para-
phrase of the Federal Constitution!]; nor shall any male person
arrived at the age of twentyone years, nor female person arrived at
the age of eighteen years be held to serve any person as a servant
under any indenture hereafter made, unless such person shall enter
into such indenture while in a state of perfect freedom, and on
condition of a bona fide consideration received or to be received
15. Ibid., Chap. III, "Slavery and the Constitution of 1818," 16-26; see
also n. 12.
16. Ibid., 20-2 r.
THE BLACK LAWS
for their service. Nor shall any indenture of any negro or mulatto
hereafter made and executed out of this state, or if made in this
state, where the term of service exceeds one year, be of the least
validity, except those given in cases of apprenticeship.17
Some gullible persons might have rejoiced at these words.
Then the second section provided that slaves bound in other
states should not be hired for "labour" in Illinois, except
(until the year I B'25) within the district of the salt works
near Shawneetown (a local concession believed to have tem-
porary validity) . In any event, these contracts were to be
for only one year, but - and this was the catch - they were
renewable. A third section declared that all contracts and
indentures which originated before IBIB should be enforced
as fully as under the territorial laws ; but the children there-
after born of indentured servants were to become free at
majority.
This was largely a confirmation, or re-affirmation, of the
existing system, with only a reduction in the length of the
indenture salvaged - from thirty-five years in the case of
males and thirty-two in the case of females to twenty-one
years and eighteen years, respectively.
But the optimists believed that limiting indentures to one
year's service and making their renewal apparently optional
with the Negro transformed the slavery system "into a pleas-
ant sort of personal service." Of course, such was not the
case. The advocates of slavery had their none too secret
designs, and the masters generally were not going to be soft-
ened by verbal salve. As this was sensed, it became doubtful
that Congress would admit Illinois into the Union under
such a constitution. The matter was debated in Congress
on the issue of slavery.
On November '23, I BIB, the report of the committee favor-
ing the admission of Illinois was read in the House of
Representatives for the third time. Congressman James
17. Ibid., 22; Art. VI, Illinois Constitution of 1818, in Emil Joseph Verlie,
Illinois Constitutions (Collections of the Illinois State Historical Library,
XIII, Springfield, 1919), 38-39.
4
62
ELMER GERTZ
of N ew York led the opposition "upon the ground
the Constitution was not sufficiently conclusive in the
. of slavery." George Poindexter of Mississippi was
leader in favoring the admission of Illinois under the
constitution. With great unction he declared that
provisions were "fraught with utility" and "an excellent
to the negro." He professed to be opposed to
himself, but he said that the hope for emancipation
vain, and one had to accept the best compromise suit-
to the time and place. Others agreed with him.
Mter almost perfunctory discussion, the vote was I I 7 for
34 against, and with Senate approval (without debate)
. became a state - a southern-oriented citadel in the
The right to hold Negroes as "indentured servants"
was confirmed by the United States Congress.
18
Followin the a . ion of the state, the legislature en-
acted, in 181 ,a com rehensive Black Code.
19
t prov
at previous to settling in the state', the Negro or mulatto
had to produce a certificate of freedom under seal of a court
of record, endorsed by the clerk of the court in which he
wished to reside, together with information as to his family
and himself. The overseers of the poor were empowered to
remove any Negro from the county who failed to comply with
the poor-law provisions. It was unlawful for anyone to
bring in a slave for the purpose of freeing him. A bond of
$1,000 was required as a guaranty that the former slave
would not become a county charge. Failure to comply meant
a fine of $200 for each freed slave.
Then there were sections relating to free Negroes already
residing in the state. They had to file evidence of their
freedom and other information with respect to themselves
with the circuit clerk. This became proof of freedom
and a means to unindentured employment. Anyone hiring
a Negro without such certificate was to be fined $ I .50 for
18. Quotations from Harris, Negro Servitude, 25; see also Annals of
Congress, 15 Cong. , 2 Sess., 305- II .
19. See n. 12.
lSI;
Ji/
8(/L
Code.
THE BLACK LAWS
each day's work performed - a very heavy penalty in those
days.
There were all sorts of provisions to protect slaveholders
in other states and territories. Anyone knowingly harboring
a slave, or preventing the recapture of one, was to be guilty
of a felony and punished accordingly. Every Negro found
without a certificate of freedom was to be considered a run
away slave, subject to arrest and commitment. He was
then, for six weeks, to be advertised by the sheriff and to be
. sold for the period of one year. If he had not been claimed
at the end of that time, he was only then to be given a con
ditional certificate of freedom. He could subsequently be
claimed by his owner. The one who informed against him
was to receive a reward. After his release, the Negro, sub
jected to all of these indignities, was to receive the amount
of wages for which he had been hired in the first instance.
Any person gaining possession of a free Negro by false
swearing was to be punished for perjury.
Another section forbade the kidnapping of free Negroes
or indentured slaves.
The remaining sections of the code dealt with the relation
of the servant or slave to his master and to the public.
In general, the code was simply a re-enactment of the
territorial laws on the subject, changed only to the extent
that circumstances required.
After 1825 the inferior legal status of Negroes was con
firmed incidentally in numerous statutes, and major pieces
of legislation dealing with the problem were passed in 1829,
1831, 1833, and 1841.20 All were superseded by a general
revision in the Revised Statutes ~ f 1845.21 This law pro
vided that any Negro resident in the state had to present
a r\rtificate of freedom and post a $ I ,000 bond that he
20. See u. 12; Harris, Negro Servitude, 50 ff.; Fishback, "Legislatiou on
l ~ e r y and Free Negroes," 421-27.
21. Lusk, Politics and Politicians, 344-45; Revised Statutes of the State
of Illinois . . . Adopted 1844-45 . . . ,Chap. 74, pp. 386-91, and (for
various miscellaneous provisions) Chap. 30, pp. 154, 159, 160, 161, 162; see
also u. 12.
ELMER GERTZ
never become a public charge and that his conduct
conform to the laws of the state. Anyone harboring
helping a Negro who had not complied with these re-
. was liable to a $500 fine. Even though he com-
with the onerous law, the free Negro might still be
if somehow the laws concerning the poor were
KJYLJ3UY affected or a lawful claim was made against him
his legal owner. br..ought a Negro into the
for the purpose subject to in-
mctmeIlt and fine.
A vast of self-help was permitted to the white
citizenry. They could seize and turn in slaves, servants, and
Negroes generally for relatively slight infractions - conduct
which would have been unthinkable against the most sodden
white person. Of course, for more serious offenses by Ne-
groes, such as riots and unlawful assembly, any white person
could act as a policeman and sometimes be paid for it. On
the other hand, those who aided Negroes to live happily
were sometimes punished. For example, any person allow-
ing Negro slaves or servants to assemble on his land for
dancing or reveling was fined $20 for each offense, and the
Negroes involved were whipped. Where a free person was
punishable by fine, an indentured servant was given twenty
lashes for every $8.00 fine. If anyone bought commodities
from a slave or servant without permission of the master,
he had to pay the master four times the value of the mer-
chandise.
A servant guilty of misconduct or laziness was whipped.
If helost a day's work, he had to repay it doubly. Any costs
of recapturing a runaway had to be borne by him through
added labor. All contracts between masters and servants
during the time of service were void. Thus, the gulling of
the bondman was encouraged in effect. A colored person
could not hire a white person. Sexual intermixture of the
races was punishable by the fine and imprisonment of both
parties.
THE BLACK LAWS
At the same time, the statute set up requirements, often
breached, for the care of servants in health and illness;
were to be fed and clothed. Servants were given the
not often availed of, to appear in the county court to com
plain of misconduct.
In 1848 a new constitution was adopted by the state. It
-
provided, in Article XIV:
The General Assembly shall at its first session under the amended
constitution pass such laws as will effectually PIohibit free persons
of color from immigrating to and settling in this and to elIec-
tua y prevent tne owners ofs aves from bringing them into this
state, for the purpose of setting them free.
22
The General Assembly, in 1853, accordingly implemented
that provision in an act that provided, among other things:
If any person or persons shall bring, or cause to be brought into
this state, any negro or mulatto slave, whether said slave is set free
or not, [he] shall be liable to an indictment, and, upon conviction
thereof, be fined for every such negro or mulatto, a sum not less
than one hundred dollars, nor more than five hundred dollars, and
imprisoned in the county jail not more than one year, and shall
stand committed until said fine and costs are paid.
23
A mulatto was defined as one having one-fourth Negro
blood. A person apprehending a Negro or mulatto was
entitled to half the fine.
Most 2eople of Illinois hated the very sight ofJbe colored
Even those, like Abraham Lincoln, who loathed
slavery,24 had to insist that they were opposed to granting
the Negro the same rights as the white man. The article
of the constitution previously quoted was submitted to a
22. Lusk, Politics and Politicians, 330; Verlie, ed., Illinois Constitutions, '
9
8
.
23. Laws of Illinois, 18 G.A., Act of Feb. 12, 1853, pp. 57-60 (quotation
from p. 57); see also Lusk, Politics and Politicians, 330-33, setting forth the
full text of "An Act to Prevent the Immigration of Free Negroes into This
State." Public reaction to this bill is described in Arthur Charles Cole, The
Era of the Civil War, 1848-1870 (The Centennial History of Illinois, III,
Springfield, 1919), 225-27, but d. Lusk, Politics and Politicians, 435.
24. This is best seen through Lincoln's various speeches and rejoinders
in his debates with Stephen A. Douglas.
4
66
ELMER GERTZ
vote, and it was adopted overwhelmingly.25 The
Constitution of 1862, drafted when the Civil War
actually being fought, was rejected at the polls, although
XVIII, separately voted on, won by an overwhelm-
majority. It read:
SECTION 1. No negro or mulatto shall migrate to or settle in
State, after the adoption of this constitution.
SEC. 2. No negro or mulatto shall have the right of suffrage,
or hold any office in this State.
SEC. 3. The general assembly shall pass all laws necessary
to carry into effect the provisions of this article. 26
We have seen how the system of indentured servants (a
polite phrase for the northern brand of slaves) was intro-
duced by the territorial laws in 1807, and confirmed by the
first Illinois Constitution of 1818 and the statutes of March,
181g, in violation of the Ordinance of 1787. One would
assume that law cases would have arisen over these enact-
ments, but years went by without the testing of their validity
in the Supreme Court. This can be understood only when
one remembers that Negroes could not testify in court, in
the first instance, and were too poor, in any event, to afford
expensive litigation involving trials and appeals. Besides,
the public and, not least of all, the lawyers were indifferent
to wrongs done the colored people, who were generally re-
garded as property, or a subhuman species at best.
The first test case involving the black laws (Cornelius v. IttS
l
.
Cohen) came before the Supreme Court of Illinois in 1825. [ I
It involved a Negro girl, Betsey, whose mother, Rachel, had
"apprenticed" herself to Joseph Cornelius, in 1804, for a
. term of fifteen years. Rachel alone had signed the inden-
ture, and though she was now free, Cornelius claimed the
services of Betsey under the territorial law of 1807. The
court decided that the 1807 act did not cover cases where
25. Lusk, Politics and Politicians, 334, 335; see n. 12.
26. New Constitution of the State of Illinois Adopted by the Constitu-
tional Convention . . . March 24, 1862 . . . (Springfield, 1862), 28;
Lusk, Politics and Politicians, 334, 335.
THE BLACK LAWS
the parties, the master and servant, did not agree upon the
time of service before the county clerk, and that indentures
not signed by the master were void. The implication was
that there had to be strict compliance with the terms of the
law. Minor as the victory was, it acted to some degree as
a restraint upon unprincipled masters.
27
Then came the important case of Nance v. Howard, de-
cided in 1828. The issue was whether Negroes might be
sold in Illinois. The supreme court decided that "registered
servants are goods and chattels, and can be sold on execu-
tion." The reasoning of the court showed the extent to
which the law had sunk under the influence of an infamous
institution. The court asserted that the territorial legisla-
tures and the state legislature had considered registered serv-
ants as personal property, and the execution and attachment
laws of the state provided for the sale or transfer of the time
of Negro servants, and Negro servants had always been taxed
as property; registered servants were therefore transferable
like other goods and chattels on execution. The Ordinance
of I 787 was no longer binding on the people of Illinois, the
court said, because the parties to it had abrogated it by
"common consent" - the people of Illinois by consenting
to indentures in their 1818 constitution, and Congress by
accepting that constitution when admitting Illinois to the
Union.
28
Not until almost a decade later, in 1836, did the Illinois
Supreme Court adopt an attitude more helpful to Negroes.
The court ruled then that all indentures not in the strictest
conformity with that portion of the act of 1807 embodied
in the Constitution of 1818 were illegal and unenforceable,
so that all colored persons not registered or indentured with-
in thirty days after being brought into Illinois could not be
held to service and were free by virtue of their residence in
the state.
29
27. I Breese 131; Harris, Negro Servitude, gg-roo.
28. I Breese 242; Harris, Negro Servitude, 100 ff.
2g. Harris, Negro Servitude, 103 ff.
4
68
ELMER GERTZ
In two cases, Bailey v. Cromwell and Kinney v. Cook,
in 1840 and 1841, it was established that "the pre-
IumPticlll of law, in the State of Illinois, [is] that every per-
is free, without regard to color," and "the sale of a free
is illegal." The sale of indentured servants was thus
ruled illegal, regardless of how some whites might conduct
themselves in flouting the court's pronouncements.
30
In the 1840's several cases involving runaway slaves were
decided ultimately to the advantage of the Negro.
31
In 1849
the Supreme Court finally decided, in Thorton's case, that
the sections of the statute which provided that fugitive slaves
could not sue for freedom but must be sent back to their
masters, or sold to labor, were unconstitutional, as in conflict
with the acts of Congress for the capture and return of run-
away slaves.
3 2
Thus, in the guise of upholding the Fugitive
Slave Act, the court dealt a blow to the proslavery view-
point, regardless of whether or not it intended this result.
Abraham Lincoln himself was once involved on the wrong
side in a strange sort of slave situation. 88 He had just been
elected to Congress and was about to take his seat, but he
continued to ride the circuit as usual, covering more ground
than any other lawyer of the region.
The case involved one Robert Matson of Kentucky (Lin-
coln's birth state), a young, well-born unmarried man. He
owned a sizable farm in Coles County, Illinois, which he ran
with slaves imported from Kentucky. He evaded the law
by returning his slaves to Kentucky each fall and replacing
them in the spring with another batch. In this way, they
could not be forcibly emancipated. But he kept one slave,
named Anthony Bryant, as a permanent overseer. Legally
speaking, Bryant, an avid reader and a preacher of the
Bible, was a free man. In the spring of 1847 the group of
30. 3 Scammon 71 and 232; Harris, Negro Servitude, 105.
3!. Harris, Negro Servitude, 105 if.
32. Ibid., 119.
33. The best account of this case is contained in Albert J. Beveridge,
Abraham Lincoln, 1809-1858 (New York, 1928), I: 392-98.
THE BLACK LAWS
slaves Matson brought from his home state included Jane,
Bryant's wife, who was believed to be the daughter of Mat-
son's own brother. - The six Bryant children accompanied
their mother. Anthony Bryant's connection with three of
the children was dubious at best; they obviously had white
blood. But they, too, were slaves.
As the result of a quarrel, Matson's housekeeper decided
to prevail upon Matson to sell Jane Bryant and her children
for hard labor on plantations in the deep South, where the
type we now know as Simon Legree would whip them into
subjection.
Terrified, Jane Bryant's h u s b n ~ sought the advice of
white friends, who urged him to hide his family with them.
Antislavery men stood guard. Even in this benighted area,
there were people who were ready to fight for the black
man's rights.
Matson sought to induce his slaves to return to him. Then
he filed an affidavit as required by law, and under a writ
his slaves were taken to the county seat and lodged in jail.
The justice of the peace decided that he lacked jurisdiction,
but since the slaves were in the state without the requisite
letters of freedom, they had to be delivered to the sheriff
to be disposed of as required by statute.
The slaves were kept in jail for many weeks, and Matson
was charged with the expense of keeping them. Feeling
ran high, both ways. Matson was found guilty of living
with his mistress, the evil woman who had incited him
against the Bryants. The white friends of the family applied
for the release of the slaves on a writ of habeas corpus.
Matson, in anger, then sued the white men for damages for
taking his slaves from him.
It was then that Lincoln came into the picture. Lincoln's
friend Usher Linder, Matson's attorney, asked him to be of
counsel in the case against the white man, Rutherford. Not
knowing this, Rutherford, too, sought Lincoln's aid. The
two men shared a common repugnance for slavery.
47
0
ELMER GERTZ
said, "with great reluctance," according to Ruth-
that he could not defend him, "because he had al-
been counseled with in Matson's interest and was
under professional obligations to represent the
unless released."
Rutherford became angry and chided Lincoln bitterly.
tried to appease Rutherford. Later Lincoln thought
was freed from his responsibility to Matson and told
! .. th,>rtnrri so, but the latter was by then too angry to en-
Lincoln. So, strange to say, Lincoln remained to rep-
Matson. The man who so hated slavery was in this
in the slaveholder's camp!
Everything depended upon the decision in the habeas
case. The crowd sensed a great legal struggle.
, taking the lead, insisted that under the constitution
the owners of slaves, "as well as of other chattels," had to
be protected in the possession of their property. Opposing
COWlSel declared that the slaves were free in Illinois by rea-
son of the Ordinance of 1787 and the state's constitution.
They failed to mention the very decision of the supreme
court in which Lincoln himself, almost a decade before then,
had won freedom for a girl who had illegally been sold as
a slave.
The great Lincoln was feeble indeed in his argument this
time. His heart was scarcely in the case. He said that
the sole question was whether the slaves were in transitu or were
meant to remain permanently on Matson's farm. . . . "This then,"
he explained, "is the point on which the whole case turns; Were
these negroes passing over and crossing the State and thus, as the
law contemplates, in transitu or were they actually located by consent
of their master? If only crossing the State that act did not free
them but if located even indefinitely by the consent of their owner
and master their emancipation logically followed. It is therefore
of the highest importance to ascertain the true purpose and intent
of Matson in placing these negroes on the Black Grove farm."
The court released the Bryant family and declared" 'that
they shall be and remain free and discharged from all servi-
471
THE BLACK LAWS
tude whatever to any person or persons from henceforward
and forever.''' Matson, in anger, left the state without
paying Lincoln his fee - poetic justice for the future Eman-
cipator.
The cases continued, bit by bit wearing away the structure
of the old and evil institution of slavery.
In I 853 the Illinois legislature passed a law forbidding
free Negroes to enter Illinois under a penalty of fine, or
sale by the sheriff. 34 I t took years for a court test of this
law. At last, in January, 1864, after the Civil War had
spilled the blood of countless people, North and South, the
case of Nelson v. The People came up before the Supreme
Court, which decided that the sale of a Negro under the
contested law did not reduce him to slavery. 35 Significantly,
this was the last time the court spoke on the subject of slave-
holding. Weeks later, Lincoln gave the proper benediction
in his immortal Second Inaugural Address. The legislature

\ - then uttered its last word in @65, whenjL wiped out the
infamous Illinois black laws.
36
They had endured in Illinois,
in the form they had then, for forty-six years, despite the
valiant efforts of those who wanted to kill the infamy, the
martyred Lovejoy among them.
It would be wrong to close without an indication that,
while the majority sentiment undoubtedly favored the black
laws, there were many who bitterly opposed them.
37
Most
people in the northern and central parts of the state, and
even a few in the southern part, sympathized with the Negro,
particularly when scoundrels wrongfully sought to enslave
him. They gladly helped poor slaves escape from bondage,
even where it aroused the violent anger of their slavery-
sympathizing neighbors. There is a story told of a Mr.
34. Act of Feb. 12, 1853, Laws of Illinois, 18 G.A., 57-60.
35. Harris, Negro Servitude, 120, 237; 33 Illinois Reports 390.
36. Act of Feb. 7, 1865, Public Laws of Illinois, 24 G.A., 105; see also
Fishback, "Legislation on Slavery and Free Negroes," 431 -32, and Harris,
Negro Servitude, 240.
37. Harris, Negro Servitude, Chap. XIII, "The Progress of Sentiment
on the Negro Question," 226-43.
472
ELMER GERTZ
111110:,<1111.:;,38 who was a prominent antislavery leader and
of Sparta. One day he learned that Mose Twist, a
kidnapper of Negroes, was at Sparta, looking
escaped slave. Burlingame immediately sought out
"You're lookin' for a runaway nigger?" he asked.
replied Twist. "Well," said Burlingame, "that nig-
is at my house. You come there at your peril. Good
sir!" It is reported that Twist declined to visit the
"W',5""'" home. That spirit might have ended the black
in time, even without the lash of war and the scourging
a just God.
38. Ibid., 58-59.
473