Allison Mileo Gorsuch
Legally, no one owned the black indentured servants of Illinois Territory as slaves. As a free territory, Illinois was bound by federal law to prohibit slavery under the Northwest Ordinance of 1787.1 Yet, from 1809 until 1818, hundreds of men and women of African descent signed indenture contracts that bound them to a system that looked like slavery to both contemporary observers and modern historians. These indentured servants—all black—served for decades at a time, without pay, and could be bought and sold at the master’s pleasure.2 They labored for masters in the fields, homes, and mines of the territory.3 This observed slavery did not rely on chattel property rights in persons, like the form of slavery practiced across the Mississippi River in Missouri, nonetheless, it was prevalent. The 1818 census counted almost 850 slaves and servants in St. Clair County.4
Was indentured servitude in Illinois Territory actually slavery? The answer lies in the distinction between slavery as a legal institution and slavery as an exercise of the powers attaching to ownership. The former—such as slavery in the southern United States—relied on a legally-enforced distinction between slave and free, owned and un-owned.5 The latter conception of slavery uses a more abstract idea of how a relationship of ownership manifests itself. In the Illinois Territory, and after 1818 in the state of Illinois, hundreds of relationships of ownership were made manifest through the nominally voluntary, contractual agreements of indentured servitude. The written laws of indentured servitude, as well as the practical application of those laws, constructed piece by piece the necessary components to allow the exercise of the powers that elsewhere attached to outright ownership. The supposed voluntary consent of the servant was the glue that held these pieces together as a legitimate whole. Examining this construction reveals the essential parts of the slavery relationship that were obscured in Illinois through this focus on consent—a useful move by masters, and one that provides a warning to modern, free jurisdictions seeking to abolish slavery in all its forms.
If indentured servitude might have been slavery, were indentured servants in Illinois Territory then slaves? Other scholars have described black indentured servitude as ‘slaves for a term’,6 ‘statutory slaves’,7 and de facto slavery.8 Perhaps the better question is: did the white parties to the indenture contract hold the black servant in a relationship that had specific manifestations of ownership? Rather than simply modifying the term ‘slave’ to describe the non-slave legal status of persons over whom control consistent with aspects of slavery was exercised, I suggest we dissect nineteenth-century indentured servitude under the rubric of slavery as the exercise of the powers attaching to the rights of ownership, as in the 1926 League of Nations definition of slavery. The question of whether the black indentured person was a slave might in fact be different than whether the black indentured person was held in slavery.
The twentieth-century legal definition of slavery as a relationship in which one person exercises the powers attaching to the right of ownership over another person may provide a useful definition at that meta-level, distinct from usage in the nineteenth-century sources, and allow us to look at relationships, rather than status, in the nineteenth-century US without committing the sin of anachronism. By so doing, we may more accurately describe the ways in which slavery continued and continues after legal abolition, with the implicit support of the state and its legal regime. This is the common question between historians of slavery in the nineteenth century and lawyers seeking to end slavery today. In both times, legal abolition was no guarantee of practical freedom.
The process of enslavement in both the South and the ‘free’ North was legally unclear. How did a relationship of ownership begin? Indentured servitude gives us a clear window into the ways in which this enslavement occurred through a contractual relationship establishing the powers of ownership. Indentured servitude in Illinois Territory relied on generating a document—a state-sanctioned written ‘agreement’—that created a simulacrum of explicit consent of the servant to the indenture contract. This process emphasized the legal differences between slavery and servitude based in the contract, a difference that coincided with the Union’s commitment to ‘free labor’ rather than legal slavery.
These consensual contracts changed with the development of American law. In the years after 1814, indenture contracts began to include references to consideration on the part of the master, as well as additional language that supported the fiction that these were voluntary, free will agreements. A person could not consent to being a slave, but he or she could consent to an indenture contract, or other labor contract. Indeed, throughout the nineteenth century, Americans increasingly saw labor contracts as acceptable, free labor.9 Indentured servitude was a legal creation, ostensibly in accordance with the Northwest Ordinance and territorial law, re-established with each contract, through legal processes. Individual indentures took place in courtrooms under the watchful eye of a court clerk. They required the drafting of formal agreements composed of precise legal terminology, signed or acknowledged by the parties involved. The contracts were carefully written to withstand judicial scrutiny; they could be struck down or upheld in courts based on their adherence to legal requirements. Masters had an exercisable right to the labor of the servant as promised in the contract; this right worked like a property right in the contract itself, and ultimately, though not explicitly, in the body of the servant.
This practice, as outlined in legal documents and procedures, reinforced a relationship of ownership absent a legal property right in people. Indentured servitude allowed the ownership of an unownable person through the practices structured by the law of contracts. The legal appearance of indentured servitude as an agreed-upon, temporary employment relationship distinguished it from Southern, nineteenth-century slavery. These legal differences between slavery and indentured servitude—between a property right in a person as chattel and a property right in a voluntary, contractual relationship—allowed Illinois Territory to enter the Union as a free state, seemingly devoted to the burgeoning free labor ideology. Masters in Illinois legally constructed a framework, called indentured servitude, which allowed them to exercise the powers of ownership while denying ownership itself.
Indentured servitude, as practiced in Illinois Territory, was decidedly not chattel slavery under nineteenth-century definitions. It was precisely and ably constructed to be not-slavery. However, it was slavery if we analyse it as a relationship that rests on the exercise of the powers attaching to the rights of ownership—as in the 1926 definition of slavery by the League of Nations. Flexible, and seemingly in keeping with contemporary views of freedom of labor and contract, the very legal form of the indenture contracts served to mask the underlying ownership.
Thus, this chapter highlights the ways in which indentured servitude was an exercise of the powers attaching to the rights of ownership. First, it outlines the legal differences between slavery and servitude as practiced in Illinois Territory through a discussion of the statutes framing the formation of contracts and the language of the contracts themselves. The chapter continues with an examination of how these contracts were legally transferred, sold, or inherited and how consideration and performance applied to these contracts. It concludes with the cementing of these consensual labor contracts through the Illinois state constitution in 1818 and beyond, and a discussion of how these issues of consent, contract, and slavery might still continue today.
In the nineteenth-century Southern US, ‘slave’ was a relatively clear legal status, difficult to shed once applied. Slavery was a specific political, cultural, economic, and legal system that varied by region and work performed, but was still unified by a network of markets and politics.10 Of course, the legal institution of slavery had its limits. Slave or free was not always a perfect description of a person’s status. Persons of color slipped in and out of each designation by the machinations of would-be owners and the person’s own abilities to secure freedom.11 The power that slavery had as an institution of clear, legal ownership and socially supported practice in the nineteenth-century South allowed those with designs of exploitation to enslave persons who were not previously slaves. Still, according to Illinois Territorial law, such legal slavery was on its way out, destined to die with the French settlers who had owned chattel slaves when Illinois had been Spanish territory.12 Indentured servitude replaced such de jure slavery in Illinois.
In 1807, the first Illinois territorial legislature adopted the laws of Indiana Territory, which had largely adopted Virginia’s codes, and with that package came laws regarding indentured servitude. ‘An Act concerning the introduction of Negroes and Mulattoes into this territory’ specified that any ‘owner or possessor’ of a person of African descent ‘owing service and labour as slaves’ in another state, could bring that slave into the territory. Once there, the owner should bring the slave before the court where, in front of the clerk, the owner and slave would agree ‘upon the term of years’ that the slave would serve the master, now as an indentured servant.13 This agreement would be recorded in a book. The master had to pay $500 as a bond against the servant becoming a charge on the state, unless the term would release the indentured servant before the age of 40, with the explanation that at that point the servant could support him or herself.14
The adopted law ‘An Act concerning Servants’ set violent punishments for unauthorized travel or assembly by ‘slaves or servants’, and for any person harboring a runaway slavery or servant.15 This Act also established the length of contracts for black children under the age of 15 who were brought into the territory. A slave child could be indentured until ‘they arrive at the age of thirty-five, and the females, until they arrive at the age of thirty-two years’.16 Rather than separating black slaves and black servants into two categories, each with different laws—in the way that white apprenticeships were covered under a separate law—the Territorial Legislature preferred to include them under one statute, reflecting their parallel situations in day-to-day life.17 White and black servants were also distinguished by their access to courts, as only white servants could bring a complaint against his or her master in court.18 These legal structures mimicked some of the most infamous parts of southern slavery, such as the inheritability of slave status,19 limits on assembly and travel,20 corporal punishment,21 and restricted ability to seek legal redress.22
The statute regarding servants also set a minimum level of clothing, food, and shelter the master must supply for the servant. The act also stated that the labor contract was both enforceable by specific performance—the slave or servant would be ‘compelled to perform such contract specifically’—as well as transferable, as ‘the benefit of the said contract of service, shall be assignable by the master’ to anyone, with the servant’s free consent.23 Under these terms, the black servant could essentially be bought or sold, and could be forced to complete his term of service by law, against his will. These two components solidified the owner’s complete control over the servant. If the servant refused to sign either the original indenture contract or any re-assignment, she could be returned to the state she had been taken from as a slave, presumably to be resold and returned to slavery in the South.24
Even free black Illinois residents were subject to restrictive laws. In 1813, the territorial legislature passed additional legislation requiring any free black or mulatto persons then living in Illinois Territory, or moving to Illinois Territory, to register with the county, with proof of freedom and payment of a thousand-dollar bond. This set the standard almost impossibly high, although some free black people managed to register themselves and their families.25 The requirement made running away into anonymity or escaping to a free black community much more difficult. If the black resident did not have proof of their registration, any citizen could arrest the black resident, and bring him or her to the sheriff where the consequences could include either removal from the territory or an auction of their labor at the courthouse.26 The result of this process was that every person of African descent, whether free or slave, had to register or be registered with the county court. Within this system, black indentured servants faced a false choice when presented with their indenture contracts. Refusing to sign an indenture in Illinois Territory was a one-way ticket back to the slave markets of the South. Signing the contract was a compelled performance, not an act of free consent.
From 1805 until 1818, 182 servants contracted with their masters in St. Clair County, Illinois Territory.27