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Property and Racial Exclusion in Illinois: Patterns and Practices from Colonial Slavery to Suburban Marginalization, 1720s–2010s

2023; University of Illinois Press; Volume: 116; Issue: 4 Linguagem: Inglês

10.5406/23283335.116.4.03

2328-3335

Caroline M. Kisiel, Brian J. Miller,

American History and Culture

THROUGHOUT THE HISTORY OF THE STATE OF ILLINOIS, the intersection of race and ethnicity with property—what has been defined as property, who has property rights, and who can benefit from property—has impacted people and communities. In Illinois, other northern states, and in the United States more broadly, access to and the belief in the right to property and all that comes with it is highly racialized.1 In this discussion, we consider the changing forms of racial exclusion via property by specifically examining how the complex legacy of slavery and the Illinois Black Codes in the early statehood years, three significant race massacres in the early twentieth century, and the local and informal practices in suburbs regarding open housing and development contributed to broad and dynamic racialized property patterns.2 Across these periods, this study reveals the connections between when African Americans were considered property and when they and other people of color could own property.The patterns and practices in Illinois we discuss are not exhaustive across experiences of communities and people—including those who successfully resisted exclusionary practices—nor across all time periods, but they demonstrate commonalities as state government, leaders and residents, and local communities limited the opportunities of Black and other people of color. These durable patterns in different configurations over time have led to similar outcomes: a reified racial hierarchy in which white residents retain both property and rights to property and power, and ultimately people of color have fewer opportunities involving property.The story of racialized property begins with white European settlers claiming land and bringing enslaved people as property to the land. The first white European people recorded in Illinois were French explorers and traders. After Father Jacques Marquette and fur trader Louis Joliet's travels, formal trading relationships and interactions developed. The French authorized slavery in Illinois, then part of French Louisiana. Enslaved Africans were originally brought to Illinois, by some accounts, in the 1720s to help cultivate subsistence crops, and by other accounts, even earlier as laborers on wheat farms in the 1680s.3 The Jesuits in Illinois may have been the first to own enslaved Africans due to their financial resources and political clout.4The French established the Code Noir, ou Recueil D'Edits, Déclarations et Arrets Concernant les Esclaves Négres de l'Amérique, avec Un Recueil de Réglemens, Concernant la Police des Isles Françoise de l'Amérique et les Engagés (Black Code or Collection of Edicts, Declarations and Orders Concerning the Negro Slaves of America, with a Collection of Regulations, Concerning the Police of the French Isles of America and the Indentured), referred to as the Black Codes, for the province of Louisiana in 1724. Some historians have contended that slavery under the French in this period in the Illinois Country (Upper Louisiana) was not harsh.5 The Codes recognized slaves as human beings, and enslavers had to provide food, shelter, clothing, Sundays and holidays off, and instruction in the Catholic faith.6 However, the Codes also described Black enslaved people as “chattels that could be bought and sold like other personal property.”7 Severe restrictions were outlined, such as punishments for escaping (with the third offense punishable by death) and prohibitions on enslaved people gathering with other enslaved people under the control of other enslavers at any time, enslaved people carrying weapons or large sticks, and intermarriage between Black and white people. The enslaved could not sell goods, nor earn money, and they could not defend themselves in court unless all the parties were “negroes.”8 One historian indicates that “protections codified on paper were often abused in reality.”9 The Code Noir also specifically spoke of the enslaved as property as well as the enslaved having no rights to own property: “We declare that slaves can have no right to any kind of property, and that all that they acquire, either by their own industry or by the liberality of others, or by any other means or title whatever, shall be the full property of their masters.”10French archives recorded that the Jesuits owned sixteen to eighteen enslaved persons in 1720, the 1732 census recorded 168, followed by 445 in 1752. The enslaved comprised about 32 percent of the population steadily over this time.11 The Jesuits first acquired enslaved Africans in the sixteenth century, and justified their ownership of enslaved persons on the following grounds: “The ubiquity of slavery in the colonies . . . and the lack of an alternative labor source required the ownership of enslaved Africans.”12 The Jesuits believed the good they did justified slavery and that slavery's evils were blunted by “their pastoral care of enslaved people.”13 The practices of enslavement in various forms—outright slavery, indentured servitude—continued through all the territorial transitions: under Britain in 1763 and then the United States in 1778, first as part of Virginia, then the Northwest Territory in 1784, Indiana Territory in 1800, and the Illinois Territory in 1809.14 Highlighting this continuity, American general George Rogers Clark reportedly felt that the enslaved under French and British rule had too many privileges, and he issued a proclamation on December 24, 1778, to remedy the “disorder” of the “too great liberty enjoyed” by the enslaved.15 This proclamation highlights the mindset about property that was already being passed down to the next generation of Illinois residents.After the US gained control of the territory from the British, the federal government passed the Northwest Ordinance of 1787, which contained language saying any states forming out of the territory northwest of the Ohio River shall be prohibited from practicing slavery.16 Article 6 of the ordinance said: “There shall be neither slavery nor involuntary servitude in the said territory otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.”17While this article provided for the establishment of free states, it did not free any slaves, and formerly enslaved people could be reclaimed if they escaped into a free territory or state, thus perpetuating the institution of slavery in newly established free states formed out of the Northwest Territory, such as Illinois, Indiana, and Ohio.18 Conversely, article 3 of the ordinance explicitly preserved the property of the “Indians,” and “their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity.” Article 2 codified that “no man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land”; if property must be taken, the owner will be compensated; and “that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed.”19 The language of “claiming” other human beings outlined in article 6 codified in law the concept of the right of ownership of other human beings. But the implications of article 6 were that this applied to enslaved African Americans, as article 3 made clear that “Indians” were to be classified differently. And since indentured servants would be bound to contracts, article 2 of this ordinance ensured that such contracts would not be subject to interference. As the states formed out of the Northwest Territory followed the Northwest Ordinance in crafting their constitutions, this legal enshrinement of who was considered property—enslaved Africans—and who was not—Indigenous peoples—became solidified in the region and upheld by law.Even prior to Illinois becoming a state, the territory fell under the jurisdiction of the Indiana Territorial Legislature, which passed An Act Concerning the Introduction of Negroes and Mulattoes into this Territory in 1807. The fourteen sections of this act mimicked the Code Noir, regulating life and movements of both free Black and enslaved people in the Territory; notably, directives to “the owner or possessor of any negroes or mulattoes” are given throughout the sections, so that such owners or possessors would know the laws they needed to follow in the Indiana Territory.20 Furthermore, when Illinois became a Territory separate from Indiana, lawmakers wholly adopted the Indiana Act as the law of the Illinois Territory.21 An 1813 territorial law then built on this by prohibiting free Black immigration, making Illinois the only free territory or state at that time to legally exclude free Black persons from residing therein.22When Illinois became a state in 1818, writers of its first constitution interpreted the Northwest Ordinance as relating to slavery that existed in the territory before statehood, indicating that neither slavery nor servitude would “hereafter” be introduced into the state.23 The writers knew they had to craft a constitution that must be against slavery, to comply with the Northwest Ordinance. But loopholes were created through the use of the word “hereafter,” allowing for what was called “old slavery” (slavery in existence prior to statehood) to continue by providing an exception for slaves who worked at the Shawneetown saltworks through 1825 (section 1), accommodating Kentucky farmers who had been using enslaved labor there for years (section 2), and by indicating that children “hereafter” born of indentured servants would become free, but only by certain ages—males at twenty-one, females at eighteen (section 3).24 Confirming how critical it was for those who held chattel property to not feel threatened by the new constitution (or, leave the new state and take with them their means of contributing to the new state's economy), constitution writers ensured that enslavers in Illinois could “feel reasonably secure in the possession of their property because of the territorial legislation supporting the indenture system and the publicly expressed opinions of governors St. Clair and Ninian Edwards,” an instance of lawmakers upholding patterns and practices of exclusion.25In addition to constitutional loopholes, in this period Illinois leaders who favored slavery “believed that the new State Legislature could, if it so desired, legally reenact later all of the old Territorial code of ‘Black Laws.’”26 The creation of the Illinois Black Codes, based on the French Code Noir and the 1807 Act from the Indiana Territorial Legislature, which had simply been adopted by the Illinois Territory, happened only a few months after statehood. At the first Illinois General Assembly in 1819, legislators passed the first version of the Codes, regulating the lives of free Black persons in the state as well as enslaved people and indentured servants. Among the restrictions, free Black people residing in the state were required to possess certificates of freedom and register themselves and any family members with the court; the hiring of free Black persons who did not possess certificates of freedom was considered a crime; the transport of enslaved people into the state for the purpose of freeing them was deemed a crime, and if discovered, a fine of $1,000 was to be imposed; enslaved people or servants were not allowed to sell goods, gather in groups of three or more, or travel at a distance of more than ten miles from their residence; and sheriffs, coroners, judges, and justices were mandated to jail enslaved people and servants who violated the gathering law, but any person was allowed to apprehend enslaved people and servants found more than ten miles from their residence, and bring them before a justice to be subject to whipping. Whipping and fines were the penalties for the enslaved or servants who violated these laws.27 Furthermore, the Codes outlined how Black or “mulatto” persons not possessing certificates of freedom could be apprehended by any citizen who could “carry them before some justice of the peace,” and if they could not present their certificate of freedom within three days, the judge could “advertise them at the door of the court house, and shall transmit a notice and cause the same to be advertised for six weeks in some public newspaper . . . ,” and if after six weeks no owner claimed them, the person would be granted a certificate from the sheriff describing their circumstances, and could be hired out for the best price for a period of one year. If the person was not claimed after one year, they could present their documentation from the sheriff and could be deemed a free person—unless their “proper owner” turned up to reclaim them at any time.28The 1819 Code did not satisfy proslavery legislators, who continued to seek a way to make Illinois an outright slave state. In early 1823, two thirds of the members of the Illinois house of representatives ratified a resolution supporting a call for a convention to discuss changing the Illinois constitution to legalize slavery outright. In response to the passing of this resolution, proslavery Illinois legislators marched in the streets of Vandalia, Illinois, home to the statehouse, with torches and along with a crowd of supporters shouting, “convention or death!”29 Residents and legislators debated these changes until August 1824 when Illinois voters rejected the proposed convention that would have likely led to changes in the Illinois constitution.30Without the convention that could have led to constitutional change, proslavery forces continued to find ways to not only legalize slavery but also create harsh restrictions for free Black persons in the state. The 1829 act revising the Illinois Black Codes deemed that any person (not just law enforcement) could capture someone they think could be a runaway, and runaways seeking freedom by entering Illinois and petitioning their case before a court would have their cases immediately dismissed. The 1833 act amended the criminal code: now not just the Black or “mulatto” offender would be fined or imprisoned for breaking the law, but any white person in Illinois assisting a Black or “mulatto” in the state could be found guilty of a misdemeanor, fined up to five hundred dollars, and imprisoned. An abolitionist newspaper editor noted the scope and consequences of the change: “This law was passed nearly twenty years before the national fugitive-slave law. It virtually made Illinois the blood-hound of the whole slave region, including any supposed territory, which only the future could curse with slavery. Other states followed this example with similar enactments.”31 Underpinning all the iterations of the Illinois Black Codes is the concept that not only the enslaved but also all people of color could be considered property, until proven otherwise. This also meant that human property of enslavers could effectively be taken from them through the process of arrest, public notification for a required period, followed by sale to the highest bidder if enslavers did not reclaim their property.The revised 1848 Illinois state constitution, celebrated as the constitution that finally permanently outlawed slavery in Illinois, also included language “that required the state legislature to prohibit African-Americans from moving to Illinois.”32 Two years later, the federal Fugitive Slave Law of 1850 was passed, laying out the harshest penalties for fugitive enslaved people and empowering ordinary citizens to arrest suspected runaways.33 In 1853, the Illinois legislature then passed An Act to Prevent the Immigration of Free Negroes into This State as the harshest expansion of the Illinois Black Codes, and following the trend of the federal law. The act fully banned African American emigration into the state, with increasing fines imposed the longer the person remained in the state. If the free Black person could not pay the fine, this law authorized sale of the person “to the lowest bidder, essentially turning the violator into a slave,” and “if a fine was imposed, whoever reported the African-American was entitled to receive half of it.”34 In effect, a free Black person could essentially become the property of the state if they violated this law, and human “property” from enslavers who ran away could be legally taken from them after the allotted time.The laws established for the Illinois Territory followed by those in early statehood carried forward patterns and practices of exclusion from the French, and the deeply rooted belief that African Americans, whether free or enslaved, either were property or could be considered property. These laws protected the interests of powerful early Illinois leaders who favored slavery, including multiple governors. Indentured servitude records show that territorial governor Ninian Edwards, an enslaver from Kentucky, brought eleven enslaved people to Illinois between 1810 and 1815 and, under territorial law, registered each one as an indentured servant, effectively keeping them in bondage to him, and preserving his rights to his property.35 As territorial governor, Edwards vetoed proposed changes to the indenture law, indicating that indentured servitude was “reasonable . . . , beneficial to the slaves and not repugnant to the public.”36 Edwards vetoed these changes based on prior legislative precedent in the territory as well as his own determination of which branch of government had authority to decide such laws. While territorial governor, he argued extensively that the Northwest Ordinance and Congress did not intend to ban slavery from Illinois, but scholars note that his veto was also due to his desire to protect his property under the system of indentured servitude in place.37 Edwards also served as Illinois's third governor (1826–1830), and he never freed any of those he enslaved. Three additional Illinois governors were also enslavers: Shadrach Bond, Illinois's first governor (1818–1822) enslaved fourteen people and bequeathed nine of them to his wife upon his death in 1832; the second Illinois governor, Edward Coles (1822–1826), was an enslaver by inheritance in his home state of Virginia, yet became staunchly antislavery and freed his enslaved property while en route to Illinois, where he then gave them land to farm; and Illinois's fourth governor, John Reynolds (1830–1834) enslaved seven people but freed them all over a span of twenty years.38Other early statehood figures also practiced slavery outright. Pierre Menard, a French Canadian fur trader and Illinois's first lieutenant governor (1818–1822), likely built his estate on the bluffs of the Mississippi in Randolph County with enslaved labor. Menard was allowed to keep those he had purchased before statehood and did not face any repercussions for those he purchased during statehood. Menard did not free any of them before his death in 1844.39 Southern Illinois entrepreneur John Crenshaw, a salt maker granted an exemption to enslave people to work in the Gallatin County saltworks, operated salt furnaces, and acquired tens of thousands of acres of land and enslaved around seven hundred people in total by legal means, possibly more. Over a century of rumors about Crenshaw's illicit activities are still being corroborated, yet he was indicted numerous times on charges of kidnapping and the disappearance of free Black people in the early statehood period.40 All of these examples illuminate how early Illinois enslavers expended significant effort to ensure their property would remain intact.In the case of Coles, in freeing his enslaved persons and bringing them to the state as free Black persons in 1819, he sought to follow the laws regarding slavery at the time. However, five years later, in 1824, proslavery opponents to Coles—who by then was governor—brought suit against Coles for violating the Illinois Black Codes in bringing his freed slaves into Illinois, claiming he brought them into Illinois to free them and therefore should have paid a bond as guarantee for good behavior for each of them.41 While the charges were ultimately dropped, this illustrates not only that the Illinois Black Codes impacted people of color but also that ownership and manumission of human property was held to strict legal parameters and could be weaponized by proslavery forces.English emigrant George Flower, a resident of Albion in Edwards County, recollected the pervasiveness of slavery and the blurred lines with servitude in southern Illinois: For all practical purposes, this part of the Territory was as much a slave-state as any of the states south of the Ohio River. To roll a barrel of salt once a year, or put salt into a salt-cellar, was sufficient excuse for any man to hire a slave, and raise a field of corn. Slaves were not only worked at the saline, they were waiters in taverns, draymen, and used in all manner of work on the north side of the Ohio River. As villages and settlements extended farther, the disease was carried with them. A black man or a black woman was found in many families, in defiance of law, up to the confines of our Settlement, sixty miles north, and in one instance in it. In some, but not many, cases, they were held defiantly; in others, evasively, under some quibble or construction of law; in most cases, under a denial of slavery. “Oh, no! not slaves; old servants attached to the family; don't like to part with them,” etc. And in many cases it was so. In some of those “attached” cases, however, there was found no bar to trading off the poor darkey for a few loads of salt, or, what was better, a little ready cash. This was the planting of slavery on our soil, within the bounds of the saline, legally and without virtuality. The evil plant took such strong root, that, in a few years, it was found difficult to pluck it up and cast it from us.42Crenshaw may have been one of the few to be indicted, but Flower wrote about the frequent kidnapping and kidnapping attempts on free Black persons taking place in the border regions of Indiana and Illinois, showing the prevalent mindset toward African Americans as potential property who could be treated as such.43Antislavery sentiment in early Illinois could draw violent responses. After being persecuted for his antislavery leanings in Missouri, minister and journalist Elijah Lovejoy thought residents of the free state of Illinois would be more sympathetic. Arguably, proslavery Illinois residents were even more outraged at Lovejoy's activities, so much so that they destroyed four of his printing presses, and in 1837 murdered him.44Other nineteenth-century Illinois actors resisted slavery and supported free Black people. George Flower and his community of English emigrants at Albion welcomed and defended free Black people; Illinois College president Edward Beecher promoted the antislavery cause; residents and African American congregations in Alton as well as other Mississippi River towns helped freedom seekers crossing from Missouri; and Chicago couple John Jones and Mary Richardson Jones harbored freedom seekers and helped to repeal the Illinois Black Codes.45 Printed records, oral histories, and archaeological evidence specifically identify several Illinois free Black settlements as safe harbors for freedom seekers, as well as other communities in the Midwest and beyond, working with “Black organizations, the Black church, and the Underground Railroad.”46 Additionally, from the Republican Party's founding in 1854, members strongly opposed the expansion of slavery. Abraham Lincoln's unsuccessful 1858 Senate run against incumbent Stephen Douglas highlighted proslavery versus antislavery tensions, and their debates across Illinois drew national attention.Another stage on which enslaved versus free played out was in the Illinois Supreme Court. The Illinois Supreme Court was “remarkably” antislavery in its opinions and rulings even as “the presumption of freedom for African Americans was pertinent as a matter of policy as well as law only in regard to freedom from slavery.”47 Many cases from this period diverged from the Illinois Black Codes in favoring freedom for African Americans, although court decisions were a mixed bag when it came to siding for an enslaved person or servant, or siding for the enslaver.48Kinney v. Cook (1841) set a precedent by ruling in favor of an enslaved defendant, Cook, against the claim brought by Kinney, who argued his enslaved need not be paid for work.49Jarrot v. Jarrot (1845) would set the wheels in motion for a change in wording in the Illinois constitution to outlaw slavery in 1848, with Justice Young stating in his majority opinion, “We cannot resist the conclusion, that all persons of color, who were in this country before and since the passage of the ordinance of 1787, and their descendants, usually known by the appellation of ‘French negroes,’ are free.”50And yet the “federal right of recapture” and the law of “comity,” allowing enslavers to traverse Illinois with their human property, were always upheld and Illinois lagged behind other free states in ending slavery.51 One of the biggest blows to the shifts in mindset about enslaved people came with the US Supreme Court decision about an enslaved person named Dred Scott, who sued for his freedom because he had resided in the free state of Illinois and the free Wisconsin territory. The case was initiated in 1846 in Missouri, and in 1852, the Missouri Supreme Court did not rule in his favor. This decision was appealed to the US Supreme Court, and in 1856, the court's decision was final: Scott was ruled to be property. In his lengthy majority opinion (read in 1857), Chief Justice Roger Taney defended the assertion that “negroes” were property in the following ways: “They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it.”52 This monumental case in the highest court of the land was one of the instigators of the Civil War, and it centered on whether African Americans could be considered property. Taney's opinion summarizes the centuries-old mindset about African Americans: “The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.”53The announcement in 1862 of the forthcoming Emancipation Proclamation at roughly the midpoint of the Civil War opened service in the Union Army to African Americans. While a pathway of empowerment for the free Black and ex-enslaved person, this also allowed for new realities of exclusion as white people feared Black empowerment and Black equality.54Following the repeal of the Illinois Black Codes and the Civil War's end in 1865, African Americans experienced a period of significant national gains through the passage of the Thirteenth, Fourteenth and Fifteenth Amendments to the US Constitution.55 Illinois was the first state to ratify the Thirteenth Amendment, permanently outlawing slavery. And although the blow of the Dred Scott decision eight years earlier ignited the sparks of war, the decision was overturned with the passage of the Thirteenth Amendment. With this, a significant legal shift occurred: African Americans were no longer considered property in the eyes of the law, nor were free people of color any longer in legal danger of becoming property. The gains for African Americans during the Reconstruction period immediately following the end of the Civil War included freedom of movement without proof of ownership, ability to work for pay, for Black men the right to vote as well as hold political office, and whereas previous laws presumed African Americans were someone's property until proven otherwise, in this new landscape, African Americans were considered free. Such dramatic changes in a very short period posed a threat and led to reassertion of white superiority and power.As Reconstruction in the South ended at the close of the 1870s, Illinois was not immune to new forms of exclusion, and mindsets about Black people as property were harder to overcome. Enslaved people were now free and could no longer be considered property, and furthermore, those who were once considered property themselves could now own property and, in turn, hold the status and empowerment that property ownership brings. Illinois legislators debated granting rights to Black residents and Black people fought for political participation.56 In the Reconstruction era, when African American men were granted the right to vote and run for office, Illinois had three African American county officials, all in Cook County, three district officials, and none elected to Congress. By comparison, dozens of county, district, and federal officials were elected in the southern states of Arkansas, Florida, Georgia and South Carolina, to name a few.57 The free Black town of Brooklyn, Illinois, elected Black officials but also found itself under the influence of capitalistic and racist processes involving the development of industrial suburbs across the river from St. Louis.58Addition