To Indent Oneself: Ownership, Contracts, and Consent in Antebellum Illinois
To Indent Oneself: Ownership, Contracts, and Consent in Antebellum Illinois
Abstract and Keywords
This chapter analyzes a certain practice in the Illinois Territory during the early 19th century where hundreds of people of African descent signed agreement contracts that bound them to a system similar to slavery. The discussion tries to distinguish slavery as a legal institution and as an exercise of powers connected to ownership. It considers legal documents in order to show the lives of these indentured servants, as well as the powers of ownership that were attached to the agreement contract. This chapter observes that while these contracts continued to highlight the voluntary nature of the master-servant agreement, these still remained to be a long-term tool of unpaid and forced labour.
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 (p.136) 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.
A. Slave or Servant? The Wrong Legal Question
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 (p.137) 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.
(p.138) 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.
B. Creating the Statutory Framework
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 (p.139) 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 (p.140) 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.
C. Forming Contracts
From 1805 until 1818, 182 servants contracted with their masters in St. Clair County, Illinois Territory.27 These indenture contracts included the explicit written voluntary agreement by the indentured servant to the terms of the contract, a contract length of many years, and the ability of the master to sell, assign, or transfer the contract to another person. These factors, as inscribed in the contract and record books, illuminate the aspects of indentured servitude that legally supported slavery in Illinois Territory. Using a falsely voluntary contract to secure the bodies and labor of black people for an extended period, masters effectively procured the ability to exercise the rights attaching to the powers of ownership under the cover of a mutual agreement.
In 1809, a master named Isham Reaves indentured Patience, a young woman of 18, and a six-month old child named Lucy. Reaves brought Patience to the (p.141) courthouse to ‘enter’ his ‘negro’ into the record. In front of the clerk, Patience ‘agreed in [the clerk’s] presence to serve the said Isham Reaves’.28 Her agreement was oral, as she did not sign the paper on which the contract was recorded. The actual words of the contract specified Patience’s responsibilities under the agreement. She ‘agree[d] to serve’ for twenty years. The contract did not include any action or promise that Isham Reaves agreed to perform, nor any penalties against him if he did not fulfill his end of the bargain. The indenture did specify that the agreement would follow the law of the Territory, which meant that Reaves had to provide Patience with a certain standard of room and board. It was unlikely Patience would have had access to knowledge of Reaves’ obligations outside of any informal network of other servants she may have had.
The contract was signed only by one party. Isham Reaves marked his ‘X’, even though this contract recited nothing about his obligations, nor contained any specific promise of action on his part. Under nineteenth-century understandings of the common law of contracts, Reaves would have had to give some sort of promise back to Patience to balance her promise to serve him.29 On all levels—action, agreement, and signing—this contract did not bear the equal marks of a true indenture. There would have been only one side of the notch torn into the page.30
Lucy, the six-month-old girl and perhaps Patience’s daughter, was indentured via the territorial law as it applied to children. In the next entry in the record book, Lucy was obliged ‘to serve’ Reaves.31 Lucy’s contract was much shorter than Patience’s contract. The infant did not agree to the contract as Patience had done. Rather, Reaves ‘enters a negro child named Lucy…to serve him according to a Law of this Territory’. Her term of years was not specified. She would likely serve until she reached the statutory age of thirty-two years.32 While children could legally make such contracts under common law (white children signed apprenticeship contracts), there was still a legally recognized, stated difference between Patience and Lucy.33 Lucy, as a child, did not have to consent. As an adult, Patience did. This was not because children could not consent, but because the statute required adults to consent. The process of indenture conformed to the legal regulations that created it, and the key factor for these indenture contracts was the appearance of consent. Patience gave such appearance when she ‘agreed’ to serve (p.142) Reaves. Lucy was not required to perform this legal fiction. Isham Reaves emancipated Patience in Saline County, Missouri in 1827, two years before her term of service was complete. Patience was emancipated along with ‘her young child’ of ‘about 18 months’ Elizabeth Jane, and two other servants. One of these other servants was named Lucy.34
A consideration of the Records of Indenture in St. Clair County from 1809 to 1818 shows that almost one-third of adult indenture contracts signed were for at least thirty years of service. One-quarter of the contracts specified a term of years between ten and twenty years. One-fifth of the contracts were between twenty and thirty years long. Five of the contracts were set for ninety-nine years. Well over half (59 per cent) of adults signing indentures in Illinois Territory (that is, those over 16 years of age) would be indentured for at least twenty years, well into a woman’s child-bearing years. Many indenture contracts did not end until the servant was over 50 years old; over one-third of adult indenture contracts ended when the servant was between fifty and sixty-four years old. The indentures bore little resemblance to an apprenticeship or free labor agreement, but instead constituted a system of unpaid, contracted labor for most of one’s life, enforceable by law if not performed. While the master may not have owned the indentured servant as chattel, he or she had unimpeded legal right to the uncompensated labor of the person for an extended period of time. A master could simply re-register or sell the servant at the expiration of his or her contract, using the threat of sale or other punishment to coerce the required consent.35 Thus, to the indentured servant, the length of time of being in bondage was indeterminate, though on paper the length was finite. The master had complete control over the length of servitude. The unidirectional flow of power—upheld by law—whether in length or type of labor, or assignment of the contract, meant that masters legally exercised control much as they would if they owned a chattel slave. The substitution of a contract system of indenture denied the master no significant power attaching to the right of ownership.
D. Transfer and Sale of Contracts
One such right of ownership was the ability to buy, transfer, inherit, and sell the contract of an indentured servant to another master. Such transfer of indenture contracts through sale or inheritance required re-registration of the servant, and (p.143) recording the servant’s consent to the new arrangement.36 Alexander Stuart (a resident of Randolph County) sold Adam, his black indentured servant, to Shadrach Bond, Jr. (a resident of St. Clair County) in 1812.37 As part of the sale, Stuart provided a copy of the original written indenture in Randolph County, certified by William Greenup, the county clerk of Randolph County. The written contract specified that Stuart and Adam had indentured for a term of twenty years. At the time of sale, Stuart himself testified ‘that the said Adam was a slave & my property before & at all times he indented himself’. Stuart ‘assigned all my rights & title to the within named Adam to Shadrach Bond Jr’. in 1812 in the St. Clair County Court.38
This re-registration requirement emphasizes the importance of the recorded contract; if Adam ran away, or challenged his indenture, Bond’s right to his labor was preserved on paper. Adam could not challenge his indenture status based on a period of prior freedom, either, once he made his mark on a statement that he had been ‘at all times’ Stuart’s property.39 In this case, Stuart articulated his right in Adam himself, as a slave, not the benefits of Adam’s contract. It was crucial that Adam had ‘indented himself’ in order for these rights to vest in Illinois. Adam’s consent at the moment of indenture in Illinois solidified Stuart’s ‘rights & title’ to Adam. While Adam had been legally, and clearly, property of Alexander Stuart when in a slave jurisdiction, there was an additional process to become subject to the law of property in Illinois. Adam had to freely choose to ‘indent himself,’ especially at this moment of transfer.
The right of masters to sell, assign, or transfer their contracts with indentured servants, even with a nod to consent, meant that the servants themselves often still presented themselves as being enslaved. In 1816, William Clark of Kentucky brought his slave, Laban (also known as Labourne), to Illinois Territory, where he immediately sold Laban to Simon Vanorsdale. Five years later, when Laban filed a freedom suit in St. Louis, Missouri, he described this moment of his original sale into Illinois as one of being sold ‘as a slave’, even though he was technically a registered, indentured servant of his own consent.40 In May of 1816, Vanorsdale had brought ‘Labourne, a mulatto man’ before the county clerk where Laban did ‘agree and determine, promise and oblige himself to serve Simon Vanorsdale as a good and faithful servant’ for forty years. Laban signed his mark below the agreement.41 In January of 1817, Vanorsdale sold him to Risdon Price of St. Louis, Missouri.
In his subsequent freedom suit in Missouri, Laban was permitted by the court to sue for his freedom, with the court directing that an ‘action of assault and battery (p.144) and false imprisonment’ would be brought against Price in Laban’s name.42 In the trial documents, Laban pled that he was being held as a slave stating: ‘Price claims and holds your petitioner as his property and slave’.43 Laban did not deny signing an indenture with Vanorsdale, and Vanorsdale presented the indenture as proof of Laban’s servitude and his own ability to sell Laban as a slave in Missouri. What Laban attempted to do with his self-presentation was to expose the legal fiction of indentured servitude. Slavery was illegal in Illinois, so it was in his best interest to be acknowledged as having been held there as a slave, contrary to law, rather than as a legally indentured servant.
However, Laban’s argument also shows the key overlaps of slavery and indentured servitude that are some of the manifestations of the exercise of the powers attaching to ownership. Vanorsdale had presented the indenture as legal proof of his ability to buy and sell Laban in Missouri as a chattel slave. Laban’s consent to serve, as recorded in the contract, gave his master complete control over his labor and physical location—even so far as to sell him. That his master would point to the indenture during a freedom suit indicates the document’s power to define the relationship between two people that was not free. Thus, that Laban called himself a slave after signing an indenture contract shows the result of indenture, even if the contract Laban made with Vanorsdale appeared to be consensual and free.44
Often, witnesses in freedom suits would describe situations in which the plaintiffs might have been servants with indenture contracts, but were perceived as essentially slaves. When Laban brought his freedom suit against Risdon Price, a witness from St. Louis, Andrew Badgely, testified that Simon Vanorsdale had held Laban in slavery in Illinois Territory ‘immediately opposite St. Louis’ and had ‘exercised every act of ownership over him,’ in 1816.45 Laban’s indenture contract did not stop Vanorsdale from effectively enslaving him—in fact, it appears that Vanorsdale was free to perform these ownership acts in public. Vanorsdale bought and sold Laban as a slave, both before and after his indenture contract was made. Vanorsdale was free at any time to break his end of the contract and sell Laban across the river, as a slave, exercising one of the defining powers attaching to the rights of ownership over Laban’s person. Badgely testified to this control as well: ‘said Leban is now living with one Risdon H. Price in Saint Louis and claimed by him as a slave’. Badgely paid no heed to the fine distinctions between Laban’s indenture and his enslavement. Effectively, if not legally, the two statuses were one and the same to him.
E. Performance, Consideration, and Consent
Performance of contractual duties, as well as consideration in the contract itself, became important legal issues in the indentures of black laborers. One Illinois indentured servant, Hannah, tried to use her master’s lack of performance under (p.145) the contract as a reason for her freedom. She challenged her indenture to William Gillham in the St. Clair County Court in Illinois. Gillham pled that Hannah had voluntarily agreed to serve him for twelve years, beginning in 1808, according to the laws of the Territory, and as her term had not yet expired, she ‘ought not to have and maintain [her] said action against him’.46
Hannah’s lawyer countered that because Gillham had not offered her any consideration, the contract was void. Even if the court held that the food and clothing requirements amounted to consideration on the part of the master, Hannah argued that ‘Defendant has altogether broken’ these ‘promises’. Gillham replied by claiming that ‘Hannah was not then and there a free woman’ when she made the agreement, as he had a ‘claim to the services of the said Hannah,’ and that there was by law a ‘legal consideration for the same agreement’. The jury decided that Hannah still owed service—in fact, they called the claim ‘false clamour’.47
Such a decision (and rhetoric) was in line with territorial laws. According to the 1807 law regarding servants, section seven specified that only citizens of ‘any of the United States of America’ could bring suit in court to challenge the terms of their indenture and section one designated ‘negroes and mulattoes’ as non-citizens: ‘All negroes and mulattoes (and other persons not being citizens of the United States…)’.48 This lack of legal remedy for this subgroup of servants contrasted with the explicit legal remedies available by statute and in courts to masters. Rather than giving her leverage, Hannah’s agreement conferred her no court access, for her lack of standing as a ‘negro or mulatto’ trumped any implied standing as one of two parties to a contract.
From 1809 until 1818, indenture contracts in St. Clair County, Illinois Territory, evolved to increasingly limit arguments like Hannah’s. Contracts began to include specific language about free will, consideration, and the servant’s own mark as evidence of agreement. This shift worked on both a moral and a legal level to justify indentured servitude: a freely chosen subjugation was morally not the forced, brutal slavery of the South, and legally the indenture contract of a black servant was like any other employment agreement. Of course, the subjugation was coerced and the consent was forced, the punishments violent, the length of term indefinite, and the labor extracted, not exchanged for pay. The move to a system that appeared to operate under the forms of mutual contract worked to prove that the North was a free labor society, with black and white people both consenting to freely chosen employment agreements.49
Indenture records made after 1811 show three points of departure from earlier, simpler contracts: 1) the signing of agreements by both servants and masters; 2) the (p.146) inclusion of consideration on the part of the master; and 3) more explicit language about the servant’s voluntary agreement. As Lawrence Friedman notes, the nineteenth century brought the growth of contract law from almost nothing into one of the largest fields of law.50 The increased emphasis on contractual forms was the result of the larger expansion of contract in the nineteenth century. Holly Brewer shows a parallel rise in the idea of consent in marriage contracts between the eighteenth and nineteenth centuries, arguing that there was an ‘increasing sense that valid contracts should be based on intentional choice’.51 This valid consent contributed to the legitimacy of the democratic republic. In England, so the reasoning went, allegiance was demanded, but in America, allegiance was freely given. So too would it be with American labor contracts, and the practice of indentures in Illinois corresponded to this commitment to free consent.52
There were multiple reasons behind the increasing emphasis on voluntary consent to indenture. Most importantly, this shift paved the way for the Illinois state constitution to make the contractual obligations of indentured servants permanent. By insisting on initial written proof of voluntary assent, Illinois masters could safely support the 1818 state constitutional provision that upheld existing indenture contracts that were not made by fraud or collusion.53 In addition, an 1814 law allowed the legal hiring of slaves for the salt mines in southern Illinois if certain standards of voluntariness were met.54 The law, in the form of legal documents, legislation, and court opinions, buttressed masters’ control over servants by placing a greater level of importance on the voluntary, free will agreement of the servant, which closed the possibility of challenging a contract on the basis of involuntary servitude.
Two years after Isham Reaves and Patience formed their one-sided contract in 1809, indentures of adults began to include the indentured servant’s mark alongside the signature or mark of the master. In one of the first instances, Frankey, a twenty-three-year-old black woman, signed her mark next to her master’s signature with the words ‘Mark of Frankey’ on her indenture contract. Her mark was a simple X. John Hay, the clerk of the court of common pleas, signed as well, verifying the accuracy of the contract and the legitimacy of her mark.55 In 1812, all ten out of ten adult indentures included the servant’s mark of ‘X’ by his or her name. Of the eighty adult indentures made between 1812 and the end of 1818, seventy-four of them had both the master’s and the servant’s marks. At first glance, this appears to be a rare expression and recording of a black servant’s action and (p.147) voice. The circumstances of the expression, however, were likely so coercive that there was no possibility for true expression. The legal standard of both parties’ signing the agreement was nonetheless thereby met, removing one potential challenge by the servant.
In 1814, a master named Joseph Beaird introduced ‘consideration’ to his indentured servants’ contracts. Consideration was a holdover from English common law. It represented ‘a motive or inducement to make the promise upon which a party is charged,’ specifying what each party would deliver as his or her end of the bargain.56 Thus, consideration served as the binding glue that showed both parties’ good faith to a deal.57 What form consideration took could vary, but until at least the 1820s, courts of both law and equity saw adequate consideration as one of the factors in determining if an agreement was fair.58 Perhaps it was these ideas that led Joseph Beaird to offer consideration to his servant Charles. Beaird, in ‘an offer of consideration in the contract…promises to pay him [Charles] at the Experation of said time the sum of fifty dollars,’ with the length of time being sixty-five years.59 Considering that Charles was twenty-seen years old at the time of this indenture, he would have been ninety-two years old if and when he ever received his fifty dollars from Joseph Beaird. But again, the form required of emerging contract law was met, more or less.
In June of 1818, Benjamin West signed fourteen indentures with black servants, including seven children. The seven adult indentures included that West ‘promise[d] and oblige[d] himself’ to pay each servant fifty dollars at the ‘expiration of her said term’.60 The seven adult indentures assigned various lengths of time to each servant, but all would be released around their 60th birthday. The twenty-six-year-old was indentured for thirty-four years, the seventeen-year-old for forty-three. Perhaps West was planning each servant’s consideration as a cruel retirement present. West would have preferred to pay the fixed sum of fifty dollars at the end of the contract rather than support an elderly and less productive servant for all of her declining years.61 Or perhaps he never expected the servants to live until sixty, having gotten his money’s worth whether they lived or died.
Illinois servant Charles’s indenture in 1814 was also one of the first examples in St. Clair County of the use of ‘free will’ language: ‘the said Charles did in my presence and of his own free will accord, agree determine and promise to serve him the said Joseph Allcom Beaird for the [term] and term of sixty five years from this (p.148) day’.62 Charles’s ‘X’ was marked next to Joseph Beaird’s. A greater emphasis on the servant’s own ‘free will’ stands in contrast to the earlier indentures in which servants were ‘brought before’ the court and ‘agreed’.63 After 1814, many of the indentures included the full language of a voluntary indenture. Joanne’s agreement in 1816 with her master Thomas Pulliam specified that she did ‘agree, determine, promise and obligate herself to serve him…’ with her mark signed below.64
A series of 1815 indentures signed by William Padfield and three adult servants required that the servants acknowledge that they were ‘indebted and owed service’ to Padfield, and each servant would ‘bind myself agreeably’ to the act of the legislature ‘regulating the introduction of negroes and mulattoes’ into the Territory.65 For what these servants were indebted, Padfield did not say. This mention of debt furthered the fiction that the contract was to fulfill a prior legal obligation, rather than to construct an irrevocable right to ownership. Through this agreement to the act, the servants would ‘serve the said William Padfield’ for the term specified, ‘obey’ Padfield ‘in all his lawful Commands’ and furthermore, ‘in all things behave myself as a good and faithful servant ought’ throughout the term. Padfield, for ‘his part’ would ‘provide…provisions & cloathing’ for the term.66 Both parties signed each contract. The language of consent echoed throughout each contract, even as servants bound themselves to masters for decades. The contracts met the legal requirement of mutual consent and consideration.
F. Challenging Consent After Statehood
The voluntariness of the indentures of black servants became the subject of some scrutiny after Illinois Territory achieved statehood in 1818, and adopted its state constitution. Article VI, Section 3 of the newly admitted state’s constitution provided that:
Each and every person who has been bound to service by contract or indenture, in virtue of the laws of the Illinois territory heretofore existing, and in conformity to the provisions of the same, without fraud or collusion, shall be held to a specific performance of their contracts or indentures, and such negroes and mulattoes as have been registered, in conformity with the aforesaid laws, shall serve out the time appointed by such laws.67
Essentially, this provision of the Illinois state constitution confirmed the ‘voluntary indentures’ signed during its territorial phase as valid contracts, to be enforced by (p.149) specific performance.68 In order to show that an indenture contract was in fact in violation of the territorial law, the servant had to prove that there had been ‘fraud or collusion’ at the time of the signing of the document—a task that would be nearly impossible. The Supreme Court of Illinois confirmed this interpretation of the Illinois Constitution’s contract clause in multiple court opinions after Illinois statehood, and also held that these contracts continued to be completely assignable, either through sale or inheritance.69 Occurring long after the original indenture had been signed, these judicial opinions affirmed longstanding practices under common law that were in use when indentured servants signed their contracts before 1818. The contracts were not subjected to a heightened scrutiny in light of Illinois’ admission into the Union of the United States as a free state because of this constitutional provision.
For example, according to Justice Scates of the Illinois Supreme Court, writing the opinion in the case of Borders v Borders in 1843, ‘by the doctrine of the common law, a master is held to have property in the services of his apprentice, assignable by the consent of the apprentice’ which would give the assignee ‘legal right to such services, when the person of the apprentice accompanies the assignment’. The servant’s body was part and parcel of the services once the servant agreed to the re-assignment of the contract. Consent attached the powers of the rights of ownership to the servant. That the common law required the consent of the servant, the court averred, ensured that there was ‘no act by which he can possibly be reduced to a state of involuntary servitude’.70
The decision rested on a previous case, Phoebe v Jay, from 1828. Phoebe had been indentured in 1814 for a term of forty years, and when her master died, ownership of Phoebe’s contract transferred to his son. The judge, Justice Lockwood, admitted in his opinion that he felt the original indenture was wholly incompatible with the Northwest Ordinance’s prohibition on slavery, decrying that ‘nothing can be conceived farther from the truth, than the idea that there could be a voluntary contract between the negro and his master’. He bemoaned that the threat of removal to a slave state made the circumstances so compelling that ‘it would be an insult to common sense to contend that the negro, under the circumstances in which he was placed, had any free agency’.71 Yet, because this case was tried after 1818, Lockwood believed that the new state constitution ‘has determined that they shall serve their masters according to the provisions of the law before recited’. These provisions conferred the right of masters to transfer ‘benefit of the said contract of service’ in an indenture ‘in the same manner as personal estate’.72 Phoebe’s contract—and her body, through her initial consent to (p.150) the contract—could be legally transferred as property. Aside from his affirmation of the common law, the judge in this case threw away his authority to rule on the case by claiming that the US Constitution supported, via the process of admitting Illinois as a state, these otherwise invalid contracts. When Justice Scates wrote the ruling in Borders v Borders in 1843, the law of slavery had become a contentious issue. By narrowing the scope of the question to the process of contract affirmation rather than following his own observations of the reality of the servant’s experience, Scates could wash his hands of a politically charged debate. The servant’s indenture contract in Borders v Borders—and thus, any other similar indenture contracts—could be sold or transferred regardless of its original validity or lack thereof. Consent and contract worked together to uphold indentured servitude in the state of Illinois, even as it had been a free state for twenty-five years.
From the moment of contract, standing in the St. Clair County courtroom in front of the clerk, indentured servants were subject to the exercise of the powers attaching to the rights of ownership. The lives of indentured servants shown here through legal documents demonstrate that these powers were real and supported through law. Courts and legislatures upheld these rights under the justification that the servants had consented to a valid contract. While slavery and involuntary servitude were forbidden in Illinois Territory under the Northwest Ordinance, these powers were exercised under the formally consensual legal contract of an indenture for service. Over time the contracts increasingly emphasized the voluntary nature of the agreement between master and servant, although the contracts themselves remained a tool of long-term, unpaid, coerced labor.
The practice of holding people in bondage outside the bounds of formal chattel slavery rests on the exercise of the powers attaching to ownership. This exercise of powers thrived on changing its appearance and construction as a result of outside pressure. Changes such as adding new language to contracts worked to keep the façade of legitimacy. The mutually agreed upon employer–employee relationship could cloak an underlying one of possession, ownership, control, and coercion. Paper read consent, while daily life, and the legal guarantees accorded to the master, bespoke coercion.
Indenture contracts were one response to the abolition in a given jurisdiction of slavery as the formal ownership of property in persons. There were, and continue to be, many other ways of continuing slavery. Today, millions of people around the world are enslaved through coercion, fraud, and violence, but lack an acknowledged legal status—much like the nineteenth-century indentured servants coerced into signing fraudulent labor contracts that left them in legal limbo. The ways in which these indenture contracts functioned in antebellum Illinois should give modern scholars and citizens pause. What might be our modern equivalent to the indenture contract? What laws and legal practices legitimate, structure, and enforce the ability of one person to exercise the powers of ownership over another person in a free (p.151) jurisdiction? It may no longer be a simple contract recorded in a county court. Now it may take the form of an expired passport or an inflated debt. Practices that are technically in line with immigration law, labor law, or lending law around the world might be used as weapons to force obedience and servitude. Other quasi-legal agreements, such as recruitment contracts, forged visas and passports, and sub-minimum wage labor agreements, are examined much as the Illinois Supreme Court looked at the ‘voluntary contracts’ from before 1818. While perhaps fraudulent and coerced, such practices could not be condemned as slavery but rather as unfortunate, uninformed decisions on the part of the alleged victim. We must open our eyes to the myriad forms that ownership may take in the twenty-first century.
The powers of ownership that attached through the indenture contract, and were then exercised by masters in Illinois Territory, are continually attractive to those who seek to exploit others for profit. Paradoxically, slavery can thrive when people believe it has been abolished. Those who would enslave others depend on a vague definition of slavery and a legal process that assumes that ownership takes a particular form. The history of indentured servitude in Illinois Territory supports the view that the legal fictions disguising slavery are unendingly dynamic, flexible, and changing—and that the powers attaching to the rights of ownership can be exercised in many historical and modern contexts.
(1) Article VI of the Northwest Ordinance states: ‘There shall be neither slavery nor involuntary servitude in the said territory…’ An Ordinance for the Government of the Territory of the United States northwest of the River Ohio, 1 Stat. 50 (1787).
(2) ‘All the terms, therefore, which go to define a slave are applicable to these classes of persons [indentured servants]’ wrote one observer in an 1854 New York Daily News article. Max, ‘Slavery in Illinois’ New York Daily News (17 March 1854) 2. Modern historians, including Paul Finkelman, have discussed this issue in many venues: ‘Slavery and the Northwest Ordinance: A Study in Ambiguity’ (1986) 6 Journal of the Early Republic 343. Paul Finkelman, ‘Evading the Ordinance: The Persistence of Bondage in Indiana and Illinois’ (1989) 9 Journal of the Early Republic 21, 30. James Simeone, Democracy and Slavery in Frontier Illinois. (Northern Illinois University Press 2000) 67.
(3) Norman Dwight Harris, History of negro slavery in Illinois and of the slavery agitation in that state (University of Chicago 1904) 15.
(4) Harris (n 3), based on Margaret Cross Norton, Illinois Census Returns 1810,1818 (Illinois State Historical Library 1935) xxx. These records are likely incomplete, however. My research shows that a far greater number of indentured servants were registered in St. Clair County than the census records indicate, perhaps showing that masters registered servants in St. Clair County and then moved elsewhere. There were also a nominal number of chattel slaves in Illinois whose masters claimed property rights through their French heritage. French and Canadian residents of Illinois Territory were allowed to keep their existing ‘laws and customs now in force…relative to the descent and conveyance, of property’, including slaves. An Ordinance for the government of the Territory of the United States northwest of the River Ohio s 2 (n 1).
(5) Thomas Morris, Southern Slavery and the Law (University of North Carolina Press 1992).
(6) James J. Gigantino II, ‘Trading in Jersey Souls: New Jersey and the Interstate Slave Trade’ 2010 77 Pennsylvania History 281.
(7) Joanne Pope Melish Disowning Slavery (Cornell University Press 1998) 88. Melish uses this term to describe children born to slaves who had to serve their parents’ master until a certain age, not adults who signed indenture contracts.
(9) Eric Foner, Free Soil, Free Labor, Free Men (Oxford University Press 1995) xxxvi–xxxvii. Amy Dru Stanley, From Bondage to Contract (Cambridge University Press 1998) 56. Stanley also emphasizes that abolitionists did not see contract labor as the necessary antithesis of slavery, and that for freedwomen, freedom of contract took on additional dimensions of patriarchal authority.
(10) Gavin Wright, Slavery and American Economic Development (Louisiana State University Press 2006) 10.
(12) An Ordinance for the government of the Territory of the United States northwest of the River Ohio s 2 (n 1). However, other documents suggest that some slaveholders thought that this legal ownership continued past the first generation through inheritance law. Boon v Juliet, 1 Ill. (Scam.) 258 (1836).
(13) Act of August 26, 1805, Ch 26, 1805 Ind. Terr. Acts 25 (regarding the introduction of ‘negroes and mulattoes’ into the Territory). Session Laws from 1803 onward have been reprinted in the two-volume set Laws of Indiana Territory 1801–1809, Francis Philbrick (ed) (Illinois Historical Collections 1930 and 1951).
(15) Act of September 17, 1807, Ch 48 1807 Ind. Terr. Acts, s 3 (establishing rules for masters and servants).
(17) The 1805 ‘Act respecting Apprentices’ limited apprenticeships to ‘any white person within the age of twenty one years’ who agreed to be bound to a trade. Act of August 15, 1805, Ch 6, 1805 Ind. Terr. Acts 5, s 1. (establishing rules for apprenticeships).
(25) ‘Personally came before me the Subscriber clerk of the Court of Common Pleas of the County of St. Clair, Lewis Demar, and enters himself as a free man, he being a black man, aged about 28 years of age and about 5 feet 3 in. high, he having given sufficient proof of his freedom…’ Record of Indentures 1807–1832 at 78, Register A (St. Clair Cnty. Ct. Com. Pl. 1814).
(26) Act of December 8, 1813, Ill. Terr. Laws s 1 (preventing free black migration to Illinois Territory). Session Laws of the Illinois Territorial Legislature reprinted in Francis Philbrick (ed), The Laws of Illinois: 1809–1818 (repr. Illinois State Historical Library 1950).
(27) Masters and servants also formed indentures in the other Illinois Territory county, Randolph County, but this analysis is based on the geographically larger St. Clair County. See Record of Negroes and Mulattoes, Register of Negroes 1809–27; 1827–63 (Randolph Cnty. Ct. 1809).
(29) For an example of such common law practice of consideration, see Joseph Chitty, A Practical Treatise on the Law of Contracts (S. Sweet 1834) 22. See also Patrick S. Atiyah The Rise and Fall of Freedom of Contract (Oxford University Press 1979).
(30) According to Blackstone’s Commentaries published in 1803 (and owned by at least one St. Clair County lawyer), an indenture was a generic word for contract, called 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. 14 Bl Comm; A Memo of the Affairs of William Young, Manuscript Record of Execution of William Young’s Estate, Record Group 6/627/1–5, Microfilm Roll #3, Illinois Regional Archive Depository—Carbondale. Among a sizable law library sold at auction in 1828 was Blackstone’s Commentaries.
(33) See Holly Brewer, By Birth or Consent: Children, Law, & the Anglo-American Revolution in Authority (University of North Carolina Press 2005) 243.
(34) Marsha Hoffman Rising, Genealogical Gems from early Missouri deeds, 1815–1850 (Heritage Books 2004) 206.
(35) There was no limit on re-registration in the statutes, and though I have found no evidence of re-registration in the time period covered by the extant records, other sources suggest that fraudulent or coercive measures were taken by masters to avoid freeing their indentured servants. See the case of John Merry, indentured servant from Illinois suing for freedom in St. Louis, Missouri. Deposition, John Merry v Tiffen & Menard, unreported (St. Louis Cnty. Cir. Ct. 1826): ‘Pinconneau also acknowledged to said witness that he intended to deprive John of his liberty and put him on board of a boat & send him to Orleans to be sold as a slave…’
(40) Laban v Risdon Price. April 1821, Case No 182, pp 3 (St. Louis Cnty. Cir. Ct).
(46) Sam Titus and Hannah v William Gillham (St. Clair Cnty. Ct. April Term 1811) at 383.
(47) Ibid 384–5.
(49) Robert Steinfeld argues that the ‘free labor’ of the nineteenth-century US was actually a system based on pecuniary and nonpecuniary pressures upon employees that was far from free in Coercion, Contract, and Free Labor in the Nineteenth Century (Cambridge University Press 2001). Yet, the pervading narrative of United States history divides the North and South by ‘free’ and ‘slave’ labor systems.
(50) Lawrence Friedman, A History of American Law (2nd edn, Touchstone 1985) 276.
(51) Holly Brewer, By Birth or Consent (University of North Carolina Press 2007) 332.
(52) Amy Dru Stanley argues that in the post Civil War period, ‘wage labor still figured as the quintessential free contract relation in accounts of law and political economy that celebrated the downfall of slavery’. From Bondage to Contract (n 4) 75.
(53) Ill. Const. of 1818 art. VI, s 3 (1818).
(54) Act of December 22, 1814, Ill. Terr. Laws This act proclaimed that ‘the manufacture of salt in particular, at the United States Saline cannot be successfully carried on by white laborers’ and so allowed ‘any slave whatsoever’ to ‘voluntarily hire himself or herself’ for a term of a year without ‘injury’ to ‘the right of property in the master in and to the services of such slave’.
(58) Morton Horwitz, ‘The Historical Foundations of Modern Contract Law’ (1976) 87 Harvard Law Review 917, 924.
(61) Fifty dollars was not a small sum of money in 1818, but by the time these indentures would have expired in the 1850s, slaves in Missouri could be hired out for at least $50 a year, with some earning far more than that for their masters. I feel confident in stating that this number was large enough to be convincing as consideration in 1818, but still of course not adequate compensation for the labor derived for over thirty years of service. Harrison Anthony Trexler Slavery in Missouri 1804–1865 (Johns Hopkins University Press 1914) 30.
(67) Ill. Const. of 1818 Art. VI s 1–2 The more widely discussed first two sections of Article VI echoed the anti-slavery language of the Northwest Ordinance, prohibiting slavery and limiting indentures for more than one year, leading many to believe Illinois did end the practice of indentured servitude as practiced in the territory. See John Hammond, Slavery, Freedom and Expansion in the Early American West (University of Virginia Press 2007) 123.
(69) In addition, courts routinely ruled that this was legal even in its rejection of the Congressional Northwest Ordinance, because by admitting Illinois as a state even with this provision, the United States had effectively overruled the anti-slavery and anti-servitude portions of that document. Phoebe, a woman of color, v William Jay, 1 Ill. (Breese) 268 (1828); John Choisser v Barney Hargrave, 2 Ill. (1 Scam.) 317 (1836), Sarah, alias Sarah Borders, a woman of color, v Andrew Borders. 5 Ill. (4 Scam.) 342 (1843).