In 1834, near what is now Green Bay, Wisconsin, three white servants were auctioned off at public sale by order of the justice of the peace. The three men, all from Canada, had been convicted of being ‘stubborn servants, for running away and breaching their contracts’ with fur trader Daniel Whitney. The men were to be ‘publicly sold’ for a term of two months to ‘any white inhabitant’ of the Michigan Territory who bid the highest.1 Such an auction seems antithetical to the notion of free soil, free labour and free men that was supposed to pervade the frontier.2
Nine years later in 1843, a few hundred miles to the south in the state of Illinois, another contracted labourer also tried to end her term of service. Sarah, a black woman, had signed her first indenture contract in 1815 and since that time had seen her contract bought and sold to multiple masters. She sued for her freedom, arguing that she had been held in violation of the Northwest Ordinance, which forbade slavery and involuntary servitude in the Northwest Territory, including Illinois. The Illinois Supreme Court ruled that as long as Sarah’s contract was transferred ‘by mutual consent’, an indenture contract was not slavery and therefore not in conflict with any federal law, be it the terms of admission of Illinois as a free state or the anti-slavery provision of the Northwest Ordinance.3
White or black, these contractual labourers found themselves bound by contract law far older than the country in which they lived. The American Revolution of 1776 did not undo the forms of bound labour that characterized the prior colonies. The next ‘revolution’ – in 1800, when Republican candidate Thomas Jefferson defeated his Federalist opponent – was supposed to usher in a new era of democracy based not on status, wealth or power but on the virtues of equal, republican citizenship. By 1800, settlers were already moving west, bringing these Jeffersonian ideals with them as they attempted to tame what they saw as wild land and form new communities under the framework of territorial governance.4 However, it was law adopted from Jefferson’s home state of Virginia that kept Sarah in bondage in free territory. Similarly, it was practices of law continued from colonial Canada that bound white voyageurs to their fur trade agent masters in the free woods of Michigan Territory. The idea of ‘mutual consent’ in both black indenture contracts and fur trade contracts transformed otherwise free people into those who could be bought and sold under continuing colonial understandings of the law of contracts, even as the new United States threw off other vestiges of British law and sought a new form of authority through the US Constitution.
These contracts were an outgrowth of a newly minted American colonial project. Just as contract labour shaped British and French colonial endeavours in North America, so did it shape American settler colonialism in the western territories.5 British and American migrants to the American Midwest transplanted legal norms from two different British colonial projects in North America into the tertiary colonial space of the Midwest. The contracts found in the ‘free’ Midwest echoed those of both the Hudson’s Bay Company and the Virginian colony. This was a conscious choice on the part of the American settlers, who wanted to continue to control labour through contract to achieve their political and economic goals in the frontier west.
Second, race mattered in the formation and execution of these contracts – but the colonial origins and circumstances of each set of contracts meant that the idea of ‘race’ functioned differently in the fur trade contracts of Michigan Territory versus the indenture contracts formed in Illinois. In the former, the fur trade evolved in a multinational, inter-colonial, and interracial space in which the more American, rigid definitions of racial boundaries and importance were not yet apparent. Before the 1830s, white and métis workers signed contracts with white and métis masters without a second thought. Even though white servants could be ‘publicly sold’ for misbehaviour in 1834, the men were bound for a term of two months, not years or decades. A black indentured servant would find her decades-long contract upheld well into the 1840s.
The Illinois indenture contracts echoed chattel slavery in a distinctly racialized practice derived from colonial Virginian codes. The development of chattel slavery law in colonial Virginia grew to emphasize and codify race as a legal category, just as it worked to establish slave owning as a requisite for republican citizenship.6 Comparing the influence of these two legal traditions of contract within this single jurisdiction highlights the ongoing colonial process of settling the American West.
In the Michigan and Illinois territories, white, black and métis, men, women and children made contracts. White contract labourers in the fur trade of Michigan Territory were often recent immigrants from British Canada or Europe. They signed their contracts in Montreal or at meeting places in the Michigan Territory, agreeing to serve for a year or more in the fur trade as agents, clerks, interpreters or engagés doing the manual labour of hauling and packing furs.7 Black contract labourers in Illinois Territory signed their labour contracts with their white masters in southern Illinois Territory, across from St Louis. The newly indentured servants were put to work throughout Illinois, from the fields in the south to the lead mines of the north.8 The métis contract labourers working in the fur trade were part of an interracial community formed out of centuries of intermarriage between French colonists and Indians in the Upper Mississippi River Valley.9 Like the white contract labourers, some métis workers signed these fur industry contracts in Canada, but many formed their agreements at home in the Michigan Territory, in little hamlets along the portages between Green Bay and the Mississippi River. Thus, the law that reached Illinois and Michigan territories was influenced by previous colonial associations.
These two sets of contracts, between black servants and their white masters in Illinois Territory and between fur trade engagés and their trader masters in Michigan Territory, capture an interesting and important moment in America’s young history. British contract law continued to influence American master–servant law in a supposedly ‘free’ frontier, though mediated through colonial Virginia and colonial Winnipeg and Montreal. These different colonial origins could most readily be seen in the use of race as a legal category in each set of contracts. In the period before 1830, laws and legal practices imported to Michigan Territory from British Canada were far less likely to discriminate by race under contract or in court than the colonial Virginia laws adopted in Illinois.
This indicates the complexity of law in empire; as Lauren Benton suggests, ‘imagining the state as a fully formed entity with a coherent view of law and of its own place in the legal order’ creates problems. Seeing the American state as colonial empire, even within its own boundaries, we are able to see the important tension among its own legal practices, with two different interpretations of British practice sitting side by side. In fact, Benton argues that ‘struggles within [colonies] made the structure of plural legal order more explicit’.10 Stephen Aron and Jeremy Adelman have argued that over the nineteenth century, national borders of sovereign states replaced the fluid and inclusive borderlands of the Great Lakes region, resulting in ‘hardened and more “exclusive” hierarchies’.11
Yet, the American experience pushes slightly against both Benton’s and Aron and Adelman’s theories: even within the sovereign border of federal territory, American law existed in pluralities. This plurality was formalized through the admission to statehood that cemented federalism and allowed Illinois to determine its own standards for ‘free labour’ and continuing indenture contracts.12 In contrast, as Michigan Territory moved toward statehood, federal law abolished the pluralities in the northern borderlands under increasingly racialized notions of legal personhood and ability to contract. That black indentures remained after statehood, while métis rights to participate in civil society declined suggests precisely the tension Benton articulates, now within American colonial law: the need for the growing imperial state to create a racial hierarchy overrode any desire for legal consistency between the treatment of populations.13
Illinois indenture contracts, 1808–1818
British forms of contract law had been part of the Northwest Territory legislation from the beginning. Territorial laws passed in the 1790s regarding highways and poor relief mentioned apprenticeships and indenture, legal forms that were part of a long tradition of common law and statutory law.14 In this tradition, labour contracts generally consisted of a voluntary agreement between employers and labourers, in which both parties agreed to a defined term of service and the penalties a labourer would pay for leaving his service early.15 The same common law and statutes regarding labour contracts were present in colonial Virginia, New York, Rhode Island, Pennsylvania and Massachusetts Bay.16
Illinois Territory adopted laws that created and enforced long-term, nominally voluntary labour contracts exclusively for black workers, in an apparent evasion of the spirit of federal law.17 The Northwest Ordinance of 1787 forbade slavery and involuntary servitude in the Northwestern territories.18 The Ordinance also required that any new territorial laws had to be adopted from one of the original thirteen states, a requirement that would apply to every state formed out of the Northwest Territory as well.19 Such an obligation made it difficult, if not impossible, to create laws for new territories that did not exist in the original thirteen states.20
In 1808, Indiana Territory separated from Illinois Territory on its way to statehood.21 Illinois Territory, as a separate jurisdiction, adopted Indiana’s laws, which had previously incorporated large portions of law from the state of Virginia, including the sections establishing indentured servitude for ‘negroes and mulattos’. Slaves and servants from these groups had to be registered with the government, contracts were assignable, and race became a defining factor in slavery.22 For example, both the Virginia and Indiana laws required imported non-white servants to continue any service owed.23 From registering servants within a certain amount of time, to fines for masters who abandoned indigent slaves to the care of the state, Indiana’s law reflected a strong influence of the Virginia laws regarding slavery.24
These Illinois territorial legislators specifically chose to continue Virginia law for the indenture code even though they largely embraced laws from two northern, free states for use on other topics. This was a conscious decision to continue colonial and Southern legal constructs of racialized bondage in an otherwise legally free land. For example, Indiana’s law stated ‘All negroes and mulattoes (and other persons not being citizens of the United States of America)’ who came into Indiana Territory ‘under contract to serve another in any trade or occupation’ would be ‘compelled to perform such contract specifically’ during the term of the contract.25 White, non-citizen servants could also be forced to finish their contracted term of service, but could contest their service in the Court of Common Pleas.26
Once a master brought a black servant or slave into Illinois or Indiana Territory, he would bring the slave to court where both master and servant would agree to a term of service and then sign a record book. If the servant refused to sign either the original indenture contract or any subsequent reassignment, she could be returned to the state she had been taken from as a slave to be resold and returned to slavery.27 Even locals saw this structure of indentured servitude as slavery. General Washington Johnston wrote in his legislative report in 1808 that the practice amounted to ‘involuntary servitude’. ‘It is,’ he wrote, ‘perhaps unnecessary to advert to the novel circumstances of a person under extreme duress of a slave becoming a party to a contract, parting with himself and receiving nothing.’28
Over time, the practice of indenture in Illinois Territory changed within a framework of Anglo-influenced common law norms of contract. The content of the indenture contracts were varied to include three new items: the servant’s mark or signature, specific language of free will, and the modern contract law concept of ‘consideration’. Beginning in 1811, both parties, rather than just the master, signed the document. Contracts now included specific language that the servant voluntarily and with free will signed the contract.29 Consideration on the part of the master became common after 1814, and often took the form of a sum of $50 to be delivered at the expiration of the term. As the majority of indentures bound servants between twenty and ninety-nine years, this payment was minimal.
The increased emphasis on contractual forms was the result of the larger expansion of contract in American common law in the nineteenth century.30 It also fit neatly within a British conception of contract. At the turn of the nineteenth century, British common law also ‘shift[ed] in emphasis from property law to contract’, as the political economy of a developing free market flourished with the idea that contracts were mutual agreements with reciprocal obligations.31 Holly Brewer shows a parallel rise in the idea of consent in marriage contracts under English law between the eighteenth and nineteenth centuries, arguing that there was an ‘increasing sense that valid contracts should be based on intentional choice’.32 American judges and lawyers embraced British sources of law, in particular William Blackstone’s Commentaries on the Laws of England, as they lacked any similar compilation of laws for their jurisdictions.33 They especially looked to Blackstone when it seemed to fit American conditions. According to the 1803 edition of Blackstone’s Commentaries, mutual consent was essential for the formation of a proper indenture. In fact, the document was called an indenture because both parties were to indent the side of the document to show their agreement. A notch formed by the two indents was proof of a true document. Such an egalitarian document, to which both parties committed, was certainly in keeping with the new politics of the 1800s America.34 The changing practice of indentures in Illinois corresponded to this commitment to free consent, mutual agreement and valid consideration while keeping black workers in bondage.
By the time Sarah challenged her servitude in 1843, Illinois had become a state and adopted a new state constitution. In that document, adopted in 1818, Illinois lawmakers once again solidified the role of those colonial contracts. The third section of the sixth article of the Illinois state constitution confirmed the ‘voluntary indentures’ signed during its territorial phase as valid contracts, to be enforced by specific performance.35 This provision echoed the master–servant law of contracts and kept Sarah in bondage in free territory. By accepting Illinois’s constitution as it entered the Union as a state, the US Congress tacitly approved the practice of long-term, ‘voluntary’ indentures from Anglo-American master–servant law on American, free soil.
A few hundred miles up the Mississippi River and its tributaries, labourers were signing another sort of contract in an entirely different racial context. Throughout the fur trade of the Great Lakes, Montreal and points west, ‘the labor system was organized around indentured servitude’, writes Carol Podruchny.36 Crossing long distances with valuable goods, both Canadian and American, white and métis fur trade employees were bound to their employers to prevent them from running away, stealing or setting up their own shop.37