The legal history of the black codes in these two states is essentially similiar, and in fact Illinois simply continued Indiana's code when it organized as a territory.
The new states that entered the union in the North after the gradual emancipation of northern slaves were just as concerned as the old ones with maintaining their racial purity. To do so, they turned to an old practice in the North: the exclusion law. Slaves could not be brought into the Northwest Territories, under the ordinance of 1787, but slaves already there remained in bondage. Once states began to emerge from the old territories, most of them explicitly barred blacks or permitted them only if they could prove their freedom and post bond. Ohio offered the first example, and those that followed her into the union followed her lead on race.
Both Indiana (1816) and Illinois (1818) abolished slavery by their constitutions. And both followed the Ohio policy of trying to prevent black immigration by passing laws requiring blacks who moved into the state to produce legal documents verifying that they were free and posting bond to guarantee their good behavior. The bond requirements ranged as high as $1,000, which was prohibitive for a black American in those days. Anti-immigration legislation was passed in Illinois in 1819, 1829, and 1853. In Indiana, such laws were enacted in 1831 and 1852. Michigan Territory passed such a law in 1827; Iowa Territory passed one in 1839 and Iowa enacted another in 1851 after it became a state. Oregon Territory passed such a law in 1849.
The evidence seems to support the theory that these rules were not uniformly enforced. But they were invoked against "troublesome" black residents, or they could be used against whole communities when white citizens found the increase in black population had reached an unacceptable level. Blacks who violated the law faced punishments that included being advertised and sold at public auction (Illinois, 1853).
Like colonization, exclusion ordinances often were advanced by self-professed friends of the black race who saw only tragedy in attempts of the races to share the same land. Robert Dale Owen, speaking in Indiana in 1850, asked if any decent person desired "the continuance among us of a race to whom we are not willing to accord the most common protection against outrage and death." The rhetoric hardly is an exaggeration: during the constitutional debate in the state that year, one speaker had frankly acknowledged, "It would be better to kill them off at once, if there is no other way to get rid of them. ... We know how the Puritans did with the Indians, who were infinitely more magninimous and less impudent than the colored race."
Not content with mere legislation, Illinois, Indiana, and Oregon had anti-immigration provisions built into their constitutions. In Illinois (1848), in clause-by-clause voting, this clause was approved by voters by more than 2 to 1. Most of the opposition to it came from the northern counties of the state, where blacks were few. In Indiana (1851), it was approved by a larger margin than the constitution itself. In Oregon (1857), the vote for it was 8 to 1. The Illinois act stayed on the books until 1865. Such laws were seldom invoked, but they served blacks as grinding reminders of apartheid intentions and legal subjugation, and they offered white authorities and mobs excuses for harassment and violence against blacks.
The Black Codes dealt with more than just settlement. Oregon forbid blacks to hold real estate, make contracts, or bring lawsuits. Illinois, Ohio, Indiana, Iowa, and California prohibited them from testifying in cases where a white man was a party. When the Illinois state constitution was adopted in 1818, it limited the vote to "free white men" and excluded blacks from the militia.
Indiana's anti-immigration rule was challenged in the case of a black man convicted for bringing a black woman into the state to marry her. The state Supreme Court upheld the conviction, noting that, "The policy of the state is ... clearly evolved. It is to exclude any further ingress of negroes, and to remove those already among us as speedily as possible."
There was no legal segregaton in Indiana's public schools: none was necessary. The white citizens of the state would keep the schools racially pure more thoroughly than any legal provision could. A court upheld the white-only Indiana public schools in 1850, finding that, in the eyes of the state, "black children were deemed unfit associates of whites, as school companions."
On closer examination, even the designation of "free state" can be question in a case like that of Illinois. Illinois, as a territory where slaves were held, had been restricting the freedom of black residents since before it became a state. In December 1813, Illinois Territory prohibited free blacks to immigrate to the territory and decreed all who did must leave within 15 days after notice or receive 39 lashes. As a state, it maintained the black codes inherited when it had formed part of Indiana, and thus continued its system of what one historian has described as "registered and indentured slavery."
[S]he permitted non-resident slave-owners to hire their slaves to citizens of Illinois for a period of twelve months, yet not give the slave his freedom; and justified her act with the excuse that laborers were wanted to erect mills and open up the country, and that salt could not be profitably manufactured by white men.When the legislature once attempted to alter the black law to strip out the provision that allowed slaves to be imported into the colony, the governor vetoed it.
Furthermore, Illinois wouldn't even emancipate the few old slaves who had been in the territory since before 1787. Every person bound to service or indenture in the territory was to continue as such under state government, though children born of such persons were to be emancipated -- the boys at 24, the girls at 18.
The first General Assembly under the constitution fastened slavery on Illinois more firmly than ever by re-enacting the old laws regarding free negroes, mulattoes, servants, and slaves, and by adopting what in the Southern States would have been a slave code. Thenceforth, no negro, no mulatto, either by himself or with his family, was to be suffered to live in the State unless he produced a certificate of freedom bearing the seal of some court of record of the State or Territory whence he came; nor until the certificate, with a long description of himself and of each member of his family, had been duly recorded in the county in which he proposed to live. Even then the overseers of the poor might expel him at any time they saw fit.As for blacks already living in Illinois in 1818, they were required to report to the circuit clerk before June 1, 1819, register their names, show evidence of their freedom, and have him issue a certificate. Any free black person in Illinois without such a certificate would be considered a slave and a runaway, and was liable to be arrested, arraigned before a justice, advertised in the newspapers for six weeks by the county sheriff. If no "owner" came forth to claim the black person, the county still could sell him or her as an indentured servant for one year.
In other matters, too, the early law of Illinois was indistinguishable from a slave state code:
To employ an uncertified negro was to incur a fine of a dollar and a half for each day he labored; to harbor a slave or servant, or hinder his recapture, was felony, punishable by a fine of twice the value of the man and thirty stripes on the bare back; to sell to, or buy of, or trade with a slave or servant without consent of the master was absolutely forbidden. If a slave was found ten miles from home without a permit, he was liable to arrest and flogging. Should he appear at any house or farm without written permission from his master, the owner of the place to which he came might give him ten lashes well laid on. Should he commit any offense for which a white man would be fined, he was to be whipped at a rate of twenty lashes for every eight dollars of fine."To all intents and purposes," McMaster concludes, "slavery was thus as much a domestic institution of Illinois in 1820 as of Kentucky or Missouri ...." And in fact a few years later, Illinois itself attempted to become a slave state.
After the Missouri Compromise, thousands of slave-holders migrated across the southern tier of Illinois on their way to the new slave state across the Mississippi. The Illinois settlers scattered across the prairie watched with envy these processions of rich, educated, ambitious men from the east and their trains of goods and slaves, wishing the immigrants would settle in Illinois instead, and knowing what prevented it was the ban on outright slave ownership in the state.
Many people in Illinois decided that the state should open itself entirely to slavery. The new sentiment got a test in the elections of 1822. The governor's contest was a four-way race: two of the candidates were outright advocates of slavery in Illinois. They got a combined 5,000 votes, but the winner, by a small plurality, was an anti-slavery candidate, Edward Coles, who had been born in Virginia and had freed the slaves he inherited. But the pro-slavery faction carried both houses of the state legislature.
Coles set out to persuade the state government to free the remaining slaves in the Illinois (those who had been in the land before the ordinance of 1787), loosen the harsh black codes, and crack down on kidnappings of free blacks. The legislature responded by refuting Coles and recommending instead that a referendum be put on the ballot at the next state election asking voters to decide whether Illinois should call a convention to amend its constitution and become a slave state.
This required a two-thirds majority in the legislature, and while the senate mustered it, in the state house it seemeed destined to fall one vote short. But the pro-slavery forces unseated a man whose election had been disputed, and they replaced him with one who voted their way. The convention measure passed.
Citizens celebrated in the streets, holding processions, parades, and public dinners. At one, this toast was offered, "The State of Illinois: the ground is good, prairie in abundance; give us plenty of negroes, a little industry, and she will distribute her treasures."
The next election was Aug. 2, 1824. The political campaign that ensues was impassioned, fractious, and intense. The subject was preached tirelessly in the pulpits and the newspapers. The turnout on Aug. 2 was enormous. At the presidential election that fall, 4,532 voted in Illinois. On the slavery question, 11,612 went to the polls. When the votes were counted, the slavery faction had lost, 6,640 to 4,972.
1. Henry W. Farnam, Chapters in the History of Social Legislation in the United States to 1860, Washington: Carnegie Institution, 1938, pp.219-20.