The Illinois Negro Code

Most people believe the history of race relations in the United States is neatly divided by geography. Those states north of the Mason-Dixon Line were paragons of equality and liberty, where race was not an issue and diversity flourished in all its glory. In the benighted states to their south, however, the entire social structure was based on slavery and racist oppression. Consequently, the War Between the States was fought purely over the issue of slavery, and, as is usual in trial by combat, the arms of the virtuous side were strengthened by the Hand of the Almighty, which led to their victory over those rebellious slaveholding cretins. For some unknown reason, the books written by court historians do not start with the words “once upon a time.”

In reality, things were much different, as the history of Illinois demonstrates.

Article VIII, Section 12, of the first Illinois state constitution (1818) states that “every person in the state has a right to justice, and to a remedy to wrongs committed against his person, property, or reputation.” However, limits were soon placed on this enumerated right. In fact, Article V of this same constitution prohibited “negroes, mulattoes, and Indians” from serving in the state militia. This meant that these people were not allowed to keep or bear arms. In “An Act Concerning Practice,” which was put in force on February 2, 1827, the first of the legal restrictions on citizenship rights for blacks was established. Section 3 states: “A negro, mulatto, or Indian shall not be a witness in any court, or in any case, against a white person. A person having one fourth part negro blood shall be adjudged a mulatto.” This section effectively prevents any of the aforementioned from having recourse in a court of law against the depredations of any white person. (This is reminiscent of the status of Dhimmis under Islamic law.) The second clause of this section did state, however, that negroes and mulattoes are persons.

The constitution of 1818 has a curious attitude toward slavery. Since slavery was not allowed in the Northwest Territories, Illinois should never have had any slaves within its borders. Article VI generally forbids slavery, except as punishment for crimes. Yet Section 2 specifically allows slaves from other states to work in the Shawneetown salt works, though only for a term of one year, after which they were to be freed.

Strife over slavery surfaced early in Illinois. In fact, there was a movement for another constitutional convention as early as 1822, with the idea of making Illinois a slave state. After some chicanery, the General Assembly passed a resolution calling for a convention. A spirited campaign ensued, and the proposal failed at the polls in 1824. Still, harsh laws concerning blacks continued to be put on the books.

In another law, passed on February 7, 1827, and put into effect on June 1, 1827, blacks and women were denied the right to sit on juries. The English common-law tradition holds that it is important that a person be judged by a jury of his peers if justice is to be served. Under Illinois law, during this time period, a woman could testify in court in most cases, yet she was denied the right to have other women serve on her jury. For blacks, the situation was worse. They could not testify even in their own defense if a white person was involved, and their jury would consist of white men.

By the early 1830’s, Illinois law books already had a section entitled the “Negro Code.” On March 30, 1819, the General Assembly passed “AN ACT respecting Free Negroes, Mulattoes, Servants, and Slaves”—a comprehensive law that governed the conditions under which free blacks, as well as slaves and servants, could come into the state. Illinois was a very poor state in those days, and the government did not want anyone coming into the state who might be a burden on the state’s rudimentary welfare system. Section 3 specifically forbids the bringing of slaves into the state for the purpose of freeing them and having them become public charges. People bringing slaves into the state were required to post a $1,000 bond for each to ensure that they were not to be freed and placed on the public dole.

Under this law, no black or mulatto was allowed to reside in Illinois unless he could produce a court certificate from some jurisdiction in the United States attesting to his free status. This certificate was to be recorded in the county of his residence. Should the free black man have a family, his certificate needed to be endorsed after the birth of each new child by a court clerk. While the burden of keeping these records seems extreme today, it may actually have provided some protection against individuals being seized as fugitive slaves and hauled off to another state. How much protection this certificate would provide is unclear, however, since Section 4 says: “Provided, nevertheless, That nothing in this act contained, shall be construed to bar the lawful claim of any person or persons to any such negro or mulatto.” In other words, there would be little legal recourse for any free black if someone claimed him as a slave and produced some bogus documentation.

Any free black was required to show a certificate of freedom in order to gain employment in Illinois. Those employers who disregarded this requirement were to be fined $1.50 per person, per day.

In fairness to the state of Illinois, this law also prescribed fair treatment of servants. When their terms of indenture were up, they were to be provided with clothes and other necessities. A servant would have to consent before his contract could be transferred to another master. There were provisions for what to do when servants misbehaved and also for masters who failed in their duties. Servants who acquired property during their terms of indenture were allowed to keep it.

On the other hand, there were harsh penalties if slaves or servants were found more than ten miles away from their master’s residence without a pass. Such an infraction could be punished with up to 35 lashes. Servants could be lashed for infractions for which free people were merely fined. The going rate was 20 lashes for each eight dollars of fine. Nobody was supposed to get more than 40 lashes at any one time. And, in Section 23,

be it further enacted, That riots, routs, unlawful assemblies, trespasses, and seditious speeches, by any slave or slaves, servant or servants, shall be punished with stripes, at the discretion of a justice of the peace, not exceeding thirty-nine . . .

This statute authorized any person to apprehend such lawbreakers and to haul them off to the justice of the peace. It was even illegal for three or more slaves or servants to assemble for the purpose of dancing or revelry, whether at night or in the daytime, even on private property. If a master was found to have allowed this law to be violated, he could be fined. And there were incentives for others to turn him in.

The fact that the law makes such references to slavery indicates that, contrary to the constitution of 1818, the “peculiar institution” was alive and well in Illinois. Slaves and servants were obviously not considered full citizens. Even free blacks had severe restrictions on their rights.

In 1829, the “ACT respecting free Negroes and Mulattoes, Servants, and Slaves” was revised. No longer was it sufficient for a free black to provide local authorities a certificate attesting his freedom. Now, he had to post a $1,000 bond as well. The bonding requirement was not imposed on any blacks already resident in Illinois. This bond was forfeited if the individual ever failed to “demean himself, or herself, in strict conformity with the laws of this state” or became a charge to any Illinois county. Any black without a certificate would now be considered a runaway slave. His status would be posted and published, and the sheriff was to take him into custody. While waiting for a master to show up, the sheriff was authorized “to hire them out for the best price he can get.” If no master showed up in a year, the sheriff was to execute a certificate effectively declaring the person to be free. There were provisions for what fees had to be paid to the sheriff should the lawful owner show up. It became a crime for any escaped slave to come to Illinois for the purpose of saving up enough money to buy his freedom. No negro, mulatto, or Indian was allowed to purchase a servant unless that person was the same “complexion” as the master. Finally, it was declared illegal for any negro or mulatto to marry any white person. Section 3 also declares any such marriages null and void, and anyone seeking to be married in violation of this law was to be given 39 lashes and imprisoned for up to one year. Any official who presided at the marriage of different races faced a fine of not less than $200 and would be ineligible for any future office in the state.

By 1845, it was illegal for people of differing races to cohabit. Those who did so were believed to be living in an “open state of adultery and fornication.” Anyone convicted of violating this law was subject to a fine of up to $500 and imprisonment for not more than a year. If this was not a sufficient deterrent, “for the second offense the punishment shall be double, for the third treble, and in the same ratio for each succeeding offense.”

By the 1840’s, the 1818 constitution was becoming an albatross around the neck of the state. Whig internal improvements had put the state government into a severe fiscal crisis. Some social problems were also coming to the fore. The northern part of the state was being heavily settled by immigrants from Northern states. The southern half of Illinois, however, was populated mostly by people from the South. A constitutional convention was called in 1847 to address the changing situation of the state. Mr. Bond, the delegate from Clinton County, and the son of the first governor of the state, offered a resolution on June 24, 1847, that would order the General Assembly to ban the immigration of free blacks into the state. He also wanted to ensure that people could not bring slaves into Illinois only to set them free. While claiming that he did not want to offend any of the other delegates and that nobody cared more about doing justice to “that class of unfortunate individuals, called free negroes” than he did, he was concerned about the property rights of slaveholders. In his part of Illinois, small communities of free blacks were springing up, and these were aiding and abetting the escape of slaves from other states.

This convention clearly showed the cleavage between the northern and southern halves of the state. Generally, the representatives from the northern counties wanted more political rights for blacks than did those of the South. Still, most of the former took care to state that they were not abolitionists. From the records of the debates of the convention, it is obvious that even those who supported blacks having some civil and political rights did not care for them very much. Concerns were aired regarding possible insurrection of blacks, interracial marriage, blacks wooing white daughters, crime, and the like. It was flatly stated by a number of delegates that blacks were not citizens regardless of what such states as Vermont and Massachusetts might think. The delegates did not think that the races could ever live together in a state of equality. Some voices pointed out that the principles of Christian charity required treating blacks fairly, but these same voices also said that they were not in favor of the Underground Railroad and that the best option for free blacks was foreign colonization. (Colonization was also the preference of both Henry Clay and Abraham Lincoln.) Even the more moderate delegates agreed that there was no question of political equality between blacks and whites, since the people were adamantly against it. Probably the best summary of the political realities of race was given by a Mr. Kinney, the delegate from St. Clair County. He cited what happened when the executors of the estate of statesman John Randolph of Roanoke sought to settle his former slaves in the strongly abolitionist state of Ohio: The locals rose up and drove them off. (In his biography of John Randolph, Russell Kirk corroborates Mr. Kinney on this point.) Mr. Kinney supported the actions of the Ohio abolitionists:

They did not want them, they knew what sort of a population they were, and how worthless and degraded they become, and how troublesome they always were. If we would allow the negroes any kind of equality we must admit them to the social hearth. It was then that equality commenced. We must live with them and permit them to mingle with us in all our social affairs, and, also, if they desired it, must not object to proposals to marry our daughters.

Finally, a compromise was worked out, under which an article in the new constitution would order the General Assembly, at the earliest possible time, to pass a law forbidding the immigration of free blacks into the state and preventing slave owners from bringing their blacks into Illinois for the purpose of freeing them and dumping them. This provision became Article XIV. To allow for the differing views on blacks in the opposite ends of the state, this article was placed as a separate question on the ballot. The voting followed sectional lines, with only a few southern delegates voting against it. After the convention adjourned for the last time, the questions were put to the voters. On March 6, 1848, 60,585 voted in favor of the new constitution, while only 15,903 opposed it. Article XIV passed by a vote of 50,261 to 21,297. That vote also followed sectional lines, being more popular in the southern portion of the state than in the north, but the general opinion seems to have been that blacks were not wanted.

Until after the War Between the States, blacks in Illinois could not vote and did not pay the poll tax; could not marry whites; could not keep or bear arms, serve on juries, or testify in court in a case involving a white. Eventually, they were forbidden even to settle in the state. This denial of rights is an aspect of the history of citizenship in Illinois that has been given short shrift for many years. It is difficult even to find copies of the 1818 and 1848 state constitutions in most libraries. The earliest version of the state constitution that is easily found is that of 1870. Access to the older editions of the Revised Statutes is limited largely by the age and fragility of the remaining copies. Consequently, many people have never heard of the Jim Crow laws that existed in Illinois and many other northern states until their repeal after 1865.

This is unfortunate, because it means that few people have an accurate picture of antebellum racial politics in the North, much less the South. Court historians have been able to keep the truth swept under the rug for nearly a century, but it is finally seeing the light of day.

Steve Berg writes from DeKalb, Illinois.

This article first appeared in the April 2004 issue of Chronicles: A Magazine of American Culture.