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Lincoln's First Freed Slave A Review of Bailey v. Cromwell, 1841
Carl Adams
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Historians as well as Abraham Lincoln's contemporaries have debated the depths of his moral opposition to slavery and his commitment to its abolition. An examination of a little-known case Lincoln argued before the Illinois Supreme Court in 1841, Bailey v. Cromwell, demonstrates his early moral stand against slavery in the state of Illinois. Therefore, from his first slavery case that freed a girl named Nance,1 to his last constitutional act of signing the Thirteenth Amendment twenty-five years later, it becomes clear that Lincoln never wavered from his legal and moral conviction that, "Neither slavery nor involuntary servitude (should) exist ..."2 Writing over a hundred years later, Federal Supreme Court Justice William O. Douglas reflected on the case that "... thanks to Lincoln, the courts had been supplied with a mass of data supporting the principle of freedom. Certainly this was one of the most far-reaching of the nearly 250 cases in which Lincoln was to appear before the state's highest tribunal."3 Far-reaching indeed! Within a quarter of a century of this trial, the basic principle of Bailey v. Cromwell became the supreme law of the land and this time not one but four million slaves became free. |
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Nance Legins-Costley was the legal personification of the definition of slavery as defined by three Supreme Court of Appeals in Illinois over a period of thirteen years.4 In her previous court attempt to win her freedom in Nance v. Howard, 1828, the verdict read, "A servant is a possession and CAN BE SOLD."5 In her next legal challenge defended by Abraham Lincoln thirteen years later, the verdict of Bailey v. Cromwell, 1841, held: "The sale of a free person is illegal."6 Nance herself deserves a place in Illinois history for her tireless pursuit "... of my personal liberty"7 for herself and, by 1841, for her children. She was also the first slave legally freed by Abraham Lincoln, which makes this case also is historically significant for scholars and admirers of Abraham Lincoln in establishing his commitment to freedom for all Americans.8 How did a little known lawyer on the Illinois frontier win such a decisive victory in a state not known for its liberal ideas on slavery? |
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In practicality, slavery was not a clear and present danger in the state of Illinois except in the minds of the radicals and extremists and the fear they spread. Slavery was and is "based on injustice and bad policy."9 However, there were only a few attempts at plantations in early southern Illinois settlements. There were no slave markets in Illinois and absolutely no threats of a slave insurrection or revolt. The ironic truth of the issue was that there were never more than a thousand slaves registered or enumerated in state or federal census and the few slaves in Illinois were scattered over hundreds of square miles. Nevertheless, the presence of those few slaves proved to be too troublesome for this new state. Illinois was the perfect testing ground for the peaceful elimination of slavery, which was accomplished through "the sober judgment of the courts"10 as applied to a new constitution over a period of ten years from 1837–1848. In addition, Abraham Lincoln was one who actively contributed to that peaceful evolution. |
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Most historians of the late nineteenth century regarded Abraham Lincoln as the "Great Emancipator." However, some late twentieth century revisionist historians developed misperceptions of Lincoln's views of slavery by focusing solely on the temporary war measure—the Emancipation Proclamation. This myopic view led them to conclude Lincoln was ambivalent about slavery itself but opposed its political impact on the nation. The Emancipation Proclamation was merely a formal announcement with relatively little legal weight that would hold up in court. The Proclamation was a prelude to recruiting thousands of black soldiers and sailors desperately needed to surround the hard-core South completely. In addition, as Commander-in-Chief, Lincoln sent this message to his generals in the form of a proclamation to prevent interference from a then hostile Supreme Court. The Emancipation Proclamation was viewed as a war expediency rather than moral outrage at the institution of slavery. |
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The Thirteenth Amendment, however, reflects Lincoln's long, legal wrestling with the issue of slavery. In early 1861, an independent "Peace Conference" was convened with delegates appointed by each state to prevent civil war. Another of Lincoln's friends led the Illinois delegation, Judge Steven Logan, who had been Lincoln's senior law partner and mentor for Lincoln's first legal test of slavery in Illinois, Bailey v. Cromwell. In addition, it was Lincoln's Republican friends from Illinois who pushed the Amendment forward. Illinois Senator Lyman Trumbull sponsored it in the Senate. Illinois Congressman Isaac Arnold co-sponsored the bill with Reverend Owen Lovejoy in the House of Representatives. Supreme Court Justice David Davis's silence was considered consent. |
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Congress had even used the Illinois law as a model for the Amendment. The evidence that Congress adopted the 13th Article of the Illinois Constitution is clearly seen with a verbatim comparison with the Thirteen Amendment of the federal Constitution of 1865 with Article 13, Section 16 of the Second Illinois Constitution of 1848.
Amendment 13 (Ratified December 1865)
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Illinois Constitution of 1848; Article 13 (Ratified March 1848).
Section 16. There shall be neither slavery nor involuntary servitude in this state, except as a punishment for crime, whereof the party shall have been duly convicted.11
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This remarkable unity of action by Illinois officials demonstrates that these men had been through all this before. In the rough and tumble politics of Illinois, Lincoln and his legal and political colleagues, in fact, had been through it all before! The President from Illinois then signed the Amendment into law on January 31, 1865. |
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Then, with the most incredible speed for that period of technology, the signed Amendment was telegraphed to Illinois' War Governor, Richard Yates waiting in Springfield with a full joint session of the Illinois General Assembly ready to approve it. Thus, Illinois became the first state to ratify the Thirteenth Amendment in less than twenty-four hours on February 1, 1865. There had not been an amendment to the U.S. Constitution in over sixty years, but the Governor and the General Assembly saw no reason to delay or debate legislation that clearly abolished the presence of slavery in Illinois, which they had put on the Illinois law books seventeen years before.12 |
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Illinois: A History of Violence over the Slavery Issue
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The events of the first thirty years of Illinois state history from 1818 to 1848 and the subsequent Illinois Black Codes on the slavery issue had served as a dress rehearsal for what these men executed in the nation's capitol years later. The state of Illinois, including its capitol city, twice erupted into violence, rioting, and arson between proslavery advocates and abolitionists. The first series of incidents occurred between 1823 and 1824 during the eighteen-month referendum campaign to make Illinois a perpetual slave state.13 Abraham Lincoln may have read about that campaign as a teenager living in Indiana only about sixty miles from Illinois, well within the circulation range of the Shawneetown Gazette newspaper, which covered the campaign extensively. |
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The second series of riots leading to arson and the murder of Reverend E. P. Lovejoy occurred with the campaign to abolish slavery in 1837 and 1838 — a shocking incident which "electrified the nation".14 The blood of the martyr was seen as a serious blow to the First Amendment Bill of Rights and condemned on the floor of Congress. Referring to the five gunshots that killed Lovejoy instantly, abolitionist Wendell Phillips later said, "The gun fired at Lovejoy was like that of (Ft.) Sumter...."15 |
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In 1837, there was a statewide call for an Anti-slavery Society Petition, in spite of threats against it. The petition was signed by 277 intrepid anti-slavery men, including a Tazewell County Abolitionist, David Bailey, who had family ties to the Underground Railroad. |
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These campaigns led to scenes described as riots in at least four Illinois cities including the new state capitol at Springfield. Future Governor John M. Palmer witnessed several violent incidents near the riverboat town of Naples.
I saw that the street ... was crowded with people ... a number of persons were kicking at and striking a man ... and was then told that several men had followed the stranger who had lectured the night before, pulled him off his horse and had taken his petition from him, and were then pursuing every man who had signed it to compel him to take his name off the paper.... (A)bout four o'clock, found the streets full of people, and learned that they had driven Mr. Ozias M. Hatch, afterwards secretary of the State of Illinois, into the belfry of the Baptist Church, in which he took refuge to avoid the mob, and that they were still in pursuit of others who had signed the petition.16
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Two weeks before the Alton rioting, the domestic tranquility in Springfield was so disrupted it split the Presbyterian congregation in two.17 The church literally became God's house — divided. A public meeting led by Supreme Court Justice Thomas Browne condemned the doctrine of immediate emancipation stating, "The efforts of abolitionists in this community are neither necessary nor useful."18 Illinois was becoming a state divided. |
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Abraham Lincoln was not yet an opinion leader, but he reflected the growing concern in the state capitol that the slavery verses abolition issue would soon have the whole state literally, up in arms, when he made his first important political speech at the Young Men's Lyceum on January 27, 1838. Lincoln delivered a law-and-order speech, "... the increasing disregard for law which pervades the country; the growing disposition to substitute the wild and furious passions, in lieu of the sober judgment of courts; and the worse than savage mobs, for the executive ministers of justice." It was readily understood Lincoln was referring to the rioting that killed Minister Lovejoy.19 |
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Over that same weekend Abraham Lincoln, still a journeyman attorney, was preparing legal briefs for his senior partner John Todd Stuart for the case of Cromwell v. Taylor, 1838.20 Nathan Cromwell, his son William, and John Taylor were slaveholders and Lincoln knew them professionally and personally. Major Nathanial Cromwell and son William had been among the wealthiest men in central Illinois and since 1828 clients of John T. Stuart, who was then one of the few college trained lawyers in central Illinois. John Taylor had been one of Lincoln's early employers when Lincoln was hired to survey Petersburg, Illinois in 1835. Nathan Cromwell and John Taylor had sued each other before as far back as 1828 over the proceeds of a bankruptcy auction and sale of real estate properties, including the chattel property of the child slaves of an alcoholic Kentucky-born State Senator, Colonel Thomas Cox.21 |
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John Stuart's legal files included the details of the sale of two orphaned black children, "a Negro girl named Nance" (Cox-Cromwell) and her younger sister Dice (Cox-Taylor). Nance Legins-Cox had been sold at auction to Nathan Cromwell for $151 and the same day her sister, Dice Legins-Cox, had been sold to Sangamon County Sheriff John Taylor for $150 in July 1827. Nance resisted and "protested." She was then "confined with chains" and imprisoned for refusing to go as servant to Nathan Cromwell.22 Since Lincoln had been court appointed as guardian-ad-litem for orphans several times in his early legal career and had lost his own mother at the tender age of ten, he may have been sympathetic to the plight of African-American orphans whose mother had been sold away from her young children in 1820.23 Much later, Nathan Cromwell had died in 1836 leaving a wealthy estate including loans, mortgages, real estate, and a host of loose ends to his heirs. The 1838 law suite of Cromwell v. Taylor filed by Nathan Cromwell's son, Dr. William Cromwell, was one of many attempts to settle his father's affairs. |
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Even though Lincoln had access to Stuart's legal files as well as Circuit Court and Supreme Court records of the earlier trials of Nance, it was not yet his case to argue, but he would have over three years to think about what he had read. There are few surviving records of what Abraham Lincoln wrote or said about Cromwell v. Taylor 1838, Cromwell v. Bailey 1839, or Bailey v. Cromwell 1841, or the other trials of Nance, but the study of the papers of Abraham Lincoln verifies what we know Lincoln had seen and read as a possible window into his thoughts. Lincoln and Stuart were friends for life, but the one topic the two never, never agreed upon was the issue of slavery. |
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Bailey and Cromwell Families
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The case of aristocratic Dr. William Cromwell verses abolitionist David Bailey began in 1838 in Tazewell County. In 1829 the families of Major Nathanial Cromwell, Jr. (1772–1836)24 and Major David Bailey (1801–1854)25 had co-founded the town of Pekin.26 After the Black Hawk War in 1832, Cromwell, acting as a land-purchasing agent, moved nine miles east and founded the town of Tremont. He brought with him the family servant Nance. Over the next three years, Tazewell County suffered three epidemics, which took the life of Mrs. Cromwell. In May 1836, Nathan Cromwell decided to travel alone to Texas on business, but he had to make arrangements for Nance. Legally, he could not abandon her, nor would he want to be seen traveling with a young Black slave who was also pregnant!27 |
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Hurriedly, on his way to catch the next riverboat down the Illinois River, he stopped at David Bailey's store and made a hasty agreement for Nance to stay with the Baileys as servant for about four hundred dollars, witnessed by Benjamin Kellogg, Jr. When Nance had learned Cromwell, who at age sixty-five had been in fragile health, died in St. Louis, she began "asserting her freedom."28 Even though Cromwell had regular legal dealings with John Stuart, his great mistake was he never wrote a Last Will and Testament. Consequently, his vast estate was sent to a Probate Court hearing in Pekin in September 1836.29 |
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Probate Judge J. C. Morgan discovered that even after a large sell-off of property, Cromwell, on his death, still owned over 1,840 acres of the best Illinois land, as well as mortgages and bank notes worth more than $30,000. In twenty-first century money, Cromwell left a multi-million dollar estate that would take his son, Dr. William Cromwell years to settle completely. As fate had it, the Probate Court convened just two weeks after Abraham Lincoln earned his law license in September 1836 and formed his apprenticeship with Cromwell's attorney John Stuart. Untangling the Cromwell estate was likely a trial-by-fire in contract law for the young lawyer. Among all those contracts was a small hastily scrawled note dated in May 1836 for four-hundred dollars with David Bailey for the services of an African-American domestic servant named Nance, whom Cromwell had described as his "slave." Complicating the pending exercise of justice was that Nance was then twenty-three years old, un-married, and pregnant. |
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Cromwell v. Bailey Begins
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The estate took about two years to sort out. By 1838 Nathan Cromwell's former attorney, John Stuart, was running for Congress, and Stuart was more interested in politics than law. Dr. Cromwell could afford the best full-time lawyers money could buy, so he decided to retain a legal team from three counties: Steven Logan from Sangamon, Charles Ballance from Peoria County, and Alexander McNoughton of Tazewell County. Political upheavals brought on by the economic "Panic of 1837" prompted the state to reorganize the courts. Steven Logan was appointed Judge, but he could make more money in private practice and resigned from the bench, which canceled the spring 1839 term of the Circuit Court, creating a backlog of cases. These and other twists and turns delayed the case for three years to September 1839. |
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Meanwhile, David Bailey of Puritan New England stock was financially troubled and retained a small-town country lawyer, William H. Holmes, from New York. Both Bailey and Holmes also knew Lincoln personally and professionally. Major Bailey had served with Captain Lincoln during the Black Hawk War in 1832.30 Lincoln was in the court during these sessions but it still was not yet his case to argue. |
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While Cromwell v. Bailey had begun in 1838, the final arguments continued into the fall term of 1839. David Bailey was disadvantaged by the lengthy trial, the backlog of cases on the docket, the reassignment of judges, and the fact that Judge William Thomas of Jacksonville was a new first-year judge. Bailey's lawyer William Holmes was facing off against Steven Logan, who had a reputation of being the best trial lawyer in the state and prominent Peoria attorney Charles Ballance. Even though Attorney Holmes argued that Nance should be a free woman, he led off his final arguments with a strategy that Dr. William Cromwell was not the legal heir of Nathan since there were two older brothers in Haggarstown, Maryland who could claim her.31 The judge apparently regarded that as a weak argument since the estate had all ready been through Probate Court. David Bailey did admit to signing the promissory note, which was all the judge needed to gavel for the plaintiff in favor of Dr. Cromwell. The new judge needed to expedite the caseload and he had no prior knowledge of the previous proceedings. Bailey ultimately regretted not seeking a jury trial so he considered appealing to the Supreme Court.32 |
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Abraham Lincoln was in the courtroom that day and wrote part "of the bill of exceptions for the Nathan Cromwell v. David Bailey slave girl case."33 Judge William Thomas was apparently impressed with Lincoln's "bill of exceptions" and later wrote, "It was next to impossible for a Judge to detect an error in any grounds that he assumed in argument. Admitting his premises his conclusions were irresistible,"34 In October 1839 David Bailey retained his wartime comrade and formally filed an appeal to the Illinois State Supreme Court. Then on December 9, 1839, Lincoln wrote and signed the petition to review Bailey v. Cromwell for the state Supreme Court.35 |
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Adding to the moral weight of a slavery case, the court was to be held in a house of God as the new state capitol building was not yet finished. On Monday July 5 1841, the Supreme Court convened for a three-week session, held in rented space in St. Paul's Episcopal Church just a few blocks from where Nance had been auctioned in 1827.36 After five years, Bailey v. Cromwell would get its day in court and Lincoln was ready. The case was presented on two different days July 9 and July 24, perhaps because the case directly involved three parties and two separate issues in the outcome, the Bailey and Cromwell contract, and the slavery issues of a female domestic servant, Nance. |
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By the time Bailey v. Cromwell got to the Supreme Court in the summer of 1841, Lincoln had dissolved his partnership with John Stuart and Lincoln was then junior partner to Steven Logan. The courts had been reorganized again, this time the Supreme Court was expanded for political reasons from four judges to nine judges. To complicate the case even more, Nance had born three children. The case began Friday July 9th. The case was present as follows:
JULY TERM, 1841.
Bailey v. Cromwell
David Bailey, appellant, v. William Cromwell et al., administrators of Nathan Cromwell, deceased, appellees.
Appeal from Tazewell (County).
"The administrators of Cromwell brought an action of assumpsit (Latin for a breach of contract; in this case, an unpaid legal debt), in the Tazewell Circuit Court, against David Bailey, upon a promissory note made to him, in his life time.
A. Lincoln, for the appellant ... The defendant pleaded,
1st, non assumpsit (that it was not a legal debt ).
2nd, no good or valuable consideration (received from the sale)
3d, that the consideration had wholly failed, in this, that the note was given for the purchase of a Negro girl, sold by Cromwell to Bailey, and who was represented to Bailey, at the time of the purchase, to be a slave and servant, when in fact she was free;
4th, that the consideration had wholly failed, in this that the note was given for the purchase of a Negro girl, and that it was agreed at the time, between the parties, that before payment was to be demanded of the note, Cromwell was to produce the necessary papers and indenture, to show and prove that the said girl was a slave or servant, and bound to servitude under the laws of this state, and that said papers were not produced, though demanded by the defendant.37
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How Lincoln Built His Case
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The significance of Bailey v. Cromwell was obscured for years. A good part of the misunderstandings from incomplete information about the trials of Nance may be cleared up by examining the specific parts of the trial that have never been published before and the specific references Lincoln used to sway the Supreme Court Justices. Out of necessity, these legal references have been carefully and judiciously edited, but the portion of the references relative to the case follows:
"A. Lincoln, for the appellant, cited 10 Johns., 198; 10 Wend., 384; 3 Caines, 325; Ordinance of Congress, Art. VI; R.L., 57; Gale's Stat., 44; Const. of Ill., Art. VI.; 14 Johns., 188; 2 Bibb., 238; 2 Salkeld, 666."
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Of these references, seven specifically involve slavery issues tested by other state Supreme Courts, while three have to do with contract law and one very specifically refers to the status of Nance's previous condition as a child apprentice in estate probation in the event of the masters' death. In legal notation, "10 Johns., 198" references volume ten written by the Supreme Court reporter Johnson on page 198, while, "10 Wend., 384" refers to volume ten of Court reporter Wendell on page 384, etc.
"10 Johns., 198": May, 1813, New York Supreme Court, Denniston v T. L. Bacon, 1810— This is an action of assumpsit, brought by the plaintiff, as endorsee of a promissory note, dated the 21st of July, 1810, by which the defendants promised, sixty days after date, to pay to the order of William Gere and Robert Elliot, one thousand dollars at the Mohawk Bank ... (pp. 164–165)
Verdict precedent: "[*198] By an agreement between A. and B. B. was to draw a note for 1,000 dollars, payable to A. on order at the Mohawk Bank ... as it would be a fraud in the payee to negotiate it, without notice of the agreement under which it was made and received by him; and that, as between the original parties, the note and the agreement formed one contract; and the terms on which it was made having failed, the maker of the note was discharged from it.
This reference was clearly used to underscore the testimonies of David Bailey and Benjamin Kellogg, Jr. that Nathan Cromwell had verbally agreed to produce the papers of legal proof in addition to the promissory note for four-hundred dollars. After Nathan Cromwell was dead, the burden of proof then fell to his son William Cromwell and his local family attorney Alex McNoughton. The Supreme Court recognized and addressed this issue specifically and Justice Sydney Breese, himself a reformed slaveholder, wrote the opinion of the court:
It was proved, as appears from (Lincoln's) bill of exceptions, that the consideration of the note sued on was the Negro girl; that at the time of the purchase, by an agent of the defendant, Cromwell represented her to be his servant, bound by indenture to serve him, seven or nine years, and that he had a right to sell her as his property, and that in a few weeks he would produce the title papers showing that she was his property; that the note declared on was to be destroyed at the time when the title papers should be produced by Cromwell, and a new note given, and a title made to the girl, by Cromwell; that the title papers never were produced by Cromwell; that they had been demanded of his administrator, who stated that he had none in his possession; that he had examined, and could find none; ...38
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Lincoln's second legal citation was also from the Supreme Court of New York; in all, four of Lincoln's references came from New York. This may have been strategy. Two of the most learned Justices on the Supreme Bench, Sydney Breese and Samuel Lockwood, were best friends who were educated in New York and had migrated to Illinois together in 1818. |
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The second reference of Livingston v. Bain is remarkably similar to Bailey v. Cromwell. It is a mirror image case. Lincoln may have been able to rest one of his arguments on this case alone. The only real legal difference apparent is gender—all females had a dependency status in nineteenth century courts of law. It states:
10 Wend., 384: May, 1833, New York Supreme Court; Livingston v Bain, 1831. This was an action of assumpsit, tried at the Columbia circuit, in April 1831, before the Hon. Charles H. Ruggles, one of the circuit judges.
On the 3d June, 1820, the plaintiff sold to the defendant the services of a negro called Tobe, to end on the 1st June, 1825. The consideration of the sale was $200, of which $50 was paid down, and the residue secured by a note, payable on demand, on which this action was brought. The declaration also contained the common counts. Tobe worked for the defendant until the 30th September, 1823, when he asserted his freedom, and left the service of the defendant, and it seems commenced a suit against Livingston, to recover for services rendered for him previous to the sale to Bain.... It was now admitted, that at the time of the sale to the defendant, Tobe was a freeman, although in May, 1817, plaintiff had bought his services from a third person, for a period expiring 1829, and paid the consideration of $200....
[Verdict Precedent]: Where the services of a Negro (whose services it was supposed might be disposed of) were sold for a term of five years, and he left the employment of his master, asserting his freedom, and it appeared that he was free at the time of the sale; it was held , in an action by the vendor against the vendee to recover the sum agreed to be paid for his services, that the consideration of the promise to pay was illegal, and in analogy to the rule of law applicable to the sale of chattels, that the assertion of freedom in this case was equivalent to the legal eviction of a vendor, on the claim of the true owner (Tobe).
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Abraham Lincoln clearly got the attention of the Bench with this citation as Justice Breese commented specifically on 10 Wend., 384: "The sale of a free person is illegal, and that being the consideration of the note, this is illegal also, and consequently, no recovery can be had upon the note."39 |
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The intent of Lincoln's third citation of contact law is not clear except that it may be a catch all safeguard against any and all additional claims made ex contractu. It reads:
3 Caines, 325: November, 1805, New York Supreme Court; Lenox, et. Al. v Howland, et. Al.; (contract law)
The court having, on a former day, allowed the plaintiffs to show that they had such a demand against the defendants as would warrant the attachment, Hoffman now read an affidavit by which it appeared that their claim was founded on the contract contained in a bill of lading, ... The substantial inquiry, in this stage of proceeding, must be to ascertain whether the party has a *legal claim arising on contract, not by what kind of action it is to be enforced, ... that its design was to place the property of a debtor in trustees for the payment, not solely of debts within the legal acceptation of that term, but of every demand contracted against his estate, ...
[Verdict Precedent]: For all demands arising ex contractu, though the amount be unliquidated, an attachment may be issued against the property of absconding and absent debtors, under the act granting relief against them.
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Of the four legal precedents handed down by the Court from Bailey v. Cromwell, two precedents made reference to the tricky logic presented by contract law. This was undoubtedly from the influence of Lincoln's new partner Judge Logan. Logan was known for pre-trial preparation and he demanded thorough research from Lincoln. "Logan would not tolerate haphazard methods. Methodical, industrious, painstaking, and precise, ... Lincoln became more studious and painstaking under Logan's tutelage.40 |
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Next Lincoln turned to his better talents in brevity and clarity of principle; Lincoln's manner of speech was developed toward uneducated country juries, he was known for simplicity, so persuasively delivered as to become eloquent. He showed that at each different stage of Illinois government that Illinois was founded on a principle in the Northwest Ordinance of July 13, 1787, which states:
Ordinance of Congress, Art. VI: "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."
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Even though, Lincoln specifically cited the "no slavery" Article VI, other parts of the Ordinance, by implication, also pertained to the provisions covering estates, wills, and the writ of habeas corpus. The fact that Nathanial Cromwell, Jr. died intestate (without a last will), statutory estate laws took effect, including the more detailed estate law governing what Probate Courts should do about surviving "Apprentices" is found in Lincoln's next reference, R. L., 57.
R.L., 57: The Revised Code of Laws of Illinois, Enacted by the Fifth General Assembly, 1827, on Apprentices, page 57.
Sec. 8. The said judge of probate, or any two justices of the peace shall, on the complaint of masters or mistresses, issue a warrant against any apprentice for desertion, without good cause, or for any misdemeanor, miscarriage or ill-behavior, and may punish such apprentice or servant according to the nature and aggravation of his or her offense, by imprisonment not exceeding ten days; and in addition to the above punishment where the offense shall be desertion without good cause, the court may order the said apprentice or servant guilty thereof, to make restitution by the payment of a sum not exceeding eight dollars for each and every month he or she may be so absent, to be collected as other debts, after such servant or apprentice shall become of full age.... An appeal to the circuit court from any decisions made under this or the preceding sections, shall be allowed to either party upon the party appealing, entering into a bond, with good and sufficient security, in the penalty of one hundred dollars....
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Even though the intent of this citation is not quite clear, it is possible Abraham Lincoln was challenging the validity of this archaic law in that it would fine and imprison under-aged minors. Gale's Stat., 44: Published by Stephan F. Gale, 1839, Chicago; Statute Laws of the State of Illinois, 1834–1837. This reference is an exact reprint of the Northwest Ordinance of 1787, Article VI. "There shall be neither slavery nor involuntary servitude in the said territory, ..." The only discernable difference was Abraham Lincoln's prior citation to the "Ordinance of Congress" as the Ordinance applied to the Northwest Territory of which "the Illinois country" was a part in 1787, while the reference to Gale's Statutes, page 44, was a review of the ordinance that applied to the Illinois Territory from 1809 to 1818. |
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This reference and the next citation that "Neither slavery nor involuntary servitude ..." was clearly thrice redundant.
Constitution of Illinois, Art. VI: (1818) Section 1, Neither slavery nor involuntary servitude shall hereafter be introduced into this state, otherwise than for the punishment of crimes, whereof the party shall have been duly convicted; nor shall any male person, arrived at the age of twenty-one years, nor female person, arrived at the age of eighteen years, be held to serve any person as a servant, under any indenture hereafter made, unless such person shall enter into such indenture while in a state of perfect freedom, and on condition of a bona fide consideration received or to be received for their service. Nor shall any indenture of any Negro or mulatto hereafter made and executed out of this state, or if made in this state, where the term of service exceeds one year, be of the least validity, except those given in cases of apprenticeship.
Section 2. No person bound to labor in any other state, shall be hired to labor in this state, except within the tract reserved for the salt works near Shawneetown; nor even at that place for a longer period than one year at any one time; nor shall it be allowed there after the year 1825: any violation of this article shall effect the emancipation of such person from this obligation to serve.
Section 3. Each and every person who has been bound to service by contract or indenture in virtue of the laws of the Illinois Territory ... 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 said laws ...
If there was any magic formula to quoting, "Neither slavery nor involuntary servitude shall exist," three times, Lincoln found it. The several points of contention in the first three sections of the 1818 Constitution of Illinois are quite evident, not the least of which Lincoln may have argued the contract to sell Nance to Bailey constituted an attempt to "introduce slavery" into this state. |
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More specifically pertinent to the case study of Nance Legins-Costley, her name as a free woman was the "contract or indenture" conditions. As Lincoln and David Bailey came to know more about Nance's case, they undoubtedly learned Nance had been to court before, several times in fact. Nance's first appeal as plaintiff in the 1827 cases of Cox v. Howard and Nance (Cox), a woman of color v. John Howard was never published and never handed down as a ruling of the court because Nance was fourteen at the time and legally an orphan.41 However, the papers from the case were, and still are, in the files of the Archives of the Illinois Supreme Court. The trials of Nance were continued as Nance, a girl of color, v. John Howard, 1828 and that appeal was published in the first Supreme Court Reports in 1831. Lincoln had access to all of this information and there is every reason to believe he found the records by tracing the case of Cromwell v. Taylor 1838, through Logan's insistence that Lincoln do thorough pre-trial research. |
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Perhaps the strongest evidence in Nance's favor that may have been mentioned indirectly in Bailey v. Cromwell was Nance's own testimony from the earlier habeas corpus court hearing "Nance, a Negro girl v. Nathan Cromwell, October 1827"42
"3. She (Nance) further states that she never either before or since such sale and delivery of her the said Nance to said Cromwell by said Howard as aforesaid did make any contract with said Cromwell to serve him in any manner or form whatever, & is now detained & restrained of her personal liberty by him against her will and consent.
She therefore prays the court to order that such further proceedings may be had by which the material facts may be ascertained as may be just & right, & that may conduct to a full & fair hearing of this cause, and upon which she hopes to be discharged & released from the illegal restraint of said Cromwell.
Her
Negro X Nance
Mark43
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In Nance's own prior testimony, she swore she never signed a contract and, therefore, there was no indenture contract. Nance was one of the very few African-Americans to testify in a white man's court of law in the 1820s. Through the ruling of anti-slavery Justice Samuel Lockwood, Nance's testimony was admitted as evidence in the Supreme Court appeal of Nance v. Howard 1828. However, Nance lost her appeal because she was a female, orphaned child. Emancipation would have been tantamount to releasing a defenseless virgin to slave bounty hunters or rapists. The court determined there was nowhere else for her to go safely except into the Cromwell household in Tazewell County, Illinois, at least until she was of age for legal marriage. |
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In the next two citations, Lincoln used a clever ploy of a comparison and contrast of Supreme Court verdicts from the two very different states of Kentucky and New York over the subjective thoughts of Justices in the absence of proof. What can a court "presume"?
14 Johns., 188 : May 1817, New York Supreme Court: Oatfield v. Waring
This was an action of assumpsit, (unpaid debt), brought to recover a compensation for supporting the defendant's slave. The cause was tried before Mr. Justice Van Ness, at the Albany circuit, in October 1816.
It was proved on the part of the plaintiff, that the slave, for whose maintenance the action was brought, was the property of the defendant's wife, at the time of her intermarriage with the defendant, in 1810, and had lived with the plaintiff in the city of Albany, and been supported by him from the time of the defendant's marriage until the 31st day of October, 1815, when he was demanded, and the day after received, by the defendant, from the plaintiff. The defendant lived in the city of Albany, and knew that the slave was kept by the plaintiff; but no proof was given of any express request on the part of the defendant, to the plaintiff to keep the slave, nor of any express notice given by the plaintiff that he expected any compensation. It was proved that the plaintiff was the grandfather of the slave, and had himself been the slave of the father of the defendant's wife; that the wife of the plaintiff was formerly a slave of the same family; that when the plaintiff moved from the house of his late master, in 1810, the slave went with him, and that about the same time the defendant and his wife removed to Albany. In October, 1815, the defendant brought an action against the plaintiff, to recover the penalty for harboring his slave, before a justice of the peace, in which judgment was given for the plaintiff in this suit, on the ground that the slave had gone and lived with the plaintiff with the defendant's knowledge; that the defendant had never directed the plaintiff to send the slave home, ... 2. Next, as to the manumission of the slave ... It will be said, that the suit brought by the defendant against the plaintiff, before a justice of the peace, is a virtual manumission of the plaintiff. But the rule of the English common law in relation to villeins, is not applicable to the case of slaves in this country.
[Verdict Precedents]: All presumptions ought to be made in favor of personal liberty.
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As compared with this case from Lincoln's home state of Kentucky, note the name of the absent judge, suggesting Lincoln may have gotten this lead from his new senior partner, Steven Logan.
2 Bibb., 238: September 1810; Court of Appeals of Kentucky, Davis, a man of color, v. Curry. Opinion of the Court, by Ch. J. Boyle, (Judge LOGAN absent). — This is a writ of error to a judgment in an action for freedom. On the trial in the court below two bills of exception were taken by the plaintiff. The first in substance states, that the defendant relied on his possession of the plaintiff as a slave from the year 1789 or '90, and on the presumption of slavery arising out of the color of the plaintiff, as sufficient evidence of title in him to put the plaintiff on the proof of his right to freedom; that the plaintiff objected to the sufficiency of this evidence, and prayed for the instruction of the court on the point, but that the court were of the opinion that the evidence was sufficient, and refused to give the instruction. The second bill of exceptions states, that the plaintiff then proved that in the year 1789, he was brought as a slave into the then district, now state of Kentucky, from the state of Delaware, where he had before his removal been held as a slave; and there being no proof of the legality of the slavery in Delaware, ...
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42
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Two questions are presented by this case. First, whether color and possession afford such a presumption of slavery as to throw the burden of proof upon the person claiming right to freedom; and second, if so, whether that presumption is destroyed by the removal of the plaintiff from the state of Delaware, there being no law of that state shown authorizing slavery. |
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The first question admits of but little doubt.... From the earliest periods of the settlement of Virginia until the year 1778, persons of the African race imported into this country were made slaves ... unless they had acquired freedom by emancipation.... Color being one of the criteria by which the African race is distinguished from the rest of the population of the country, must consequently afford ... a presumption of slavery upon which the master may rely until the contrary is proven. |
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The ultimate question Lincoln put before the Justices to decide was who had the burden of proof — the supposed master or the alleged slave? July 9, 1841. Supreme Court orders errors assigned by Monday in Bailey v Cromwell, appeal from Tazewell County, involving payment of note given by Bailey for slave girl. Lincoln represents Bailey, who argues that there was no proof girl was slave of Cromwell at time of attempted sale. In absence of proof presumption that she was free must prevail.44 |
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Lincoln had one more reference to complete the case. When Illinois was established as a separate territory in 1809 Governor Ninian Edwards decreed by Proclamation that English Common Law would be enforced on any issue of law not yet addressed by an Illinois Territorial General Assembly. So to close the loop, Abraham Lincoln cited an undated British ruling apparently from the eighteenth century. |
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2 Salkeld, 666: English Common Law, (No date); Smith versus Brown and Cooper Indebitatus assumpsit for a negro sold. Question: Whether inheritances or not?
The plaintiff declared in an indebitatus assumpsit for a negro sold by the plaintiff to the defendant, ... and verdict for the plaintiff; and, on motion in arrest of judgment, Holt, C. J. held, that as soon as a negro comes into England, he becomes free: one may be a villein in England, but not a slave. Et per Powell, J. In a villein the owner has a property, but it is an inheritance; in a ward he has a property, but it is a chattel real; the law took no notice of a negro. Holt, C. J. You should have averred in the declaration, that the sale was in Virginia, and, by the laws of that country, negroes are saleable; for the laws of England do not extend to Virginia, being a conquered country their law is what the King pleases; and we can not notice of it but as set forth; therefore he directed the plaintiff should amend, and the declaration should be made, that the defendant was indebted to the plaintiff for a negro sold here at London, but that the said negro at the time of sale was in Virginia, and that negroes, by the laws and statutes of Virginia, are saleable as chattels. Then the Attorney-General coming in said, they were inheritances, and transferable by deed, and not without: and nothing was done.
The Supreme Court handed down the verdict on Friday July 23, 1841 with four new legal precedents into Illinois law over and above the Illinois 1818 Constitution.
1st: Where a note, and an agreement in relation to the note, are made at the same time, they must be taken together, and form one entire contract .
2nd: Where the consideration of a Promissory note was the sale of a Negro girl, and at the time of the sale, it was agreed between the parties, that before payment should be demanded of the note, the payee should produce the necessary papers and indenture, to prove that the girl was a slave, or bound to service under the laws of the State of Illinois, and such papers were not produced, though demanded: HELD, that there was no consideration for the note, and that it was void.
3rd: It is a presumption of law, in the State of Illinois, that every person is free, without regard to color. (And, therefore ...)
4th: The sale of a free person is illegal. (Still enforced in the 21st century)
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Precedents and Conclusions
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The case of Bailey v. Cromwell is mentioned in over forty books, but most accounts contain only a few paragraphs or little more than footnotes. A number of the published stories include one or more errors of fact. What became obvious in comparing different versions is that most relied solely on the three page summary of the Supreme Court Report, which Isaac Arnold, who was likely an eyewitness to the proceedings, insisted that at best, it was "an imperfect report."45 Few Lincoln biographers traveled to Tazewell County court to read the original Circuit Court trial transcripts and erroneous assumptions have made it obvious that none of the previous writers bothered to look up Lincoln's legal references or their conclusions would have had different outcomes. |
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For those who may still doubt that Lincoln's work in Bailey v. Cromwell was a historically significant anti-slavery Supreme Court decision, Bailey v. Cromwell was successfully cited two years later in the 1843 case of Willard v. The People, and again in the 1857 case Rodney v. Illinois Central Railroad Company. Lincoln's use of "Ordinance, R.L. 57, Art. VI"46 was repeated by Lincoln's anti-slavery legal friends, Lyman Trumbull47 and Gustof Koerner in the infamous Borders v. Borders, 1843 slavery case as well as Lincoln's reference of 2 Salkeld 666 was used in Hone v. Ammons in November 1852. All of these support the claim by Jesse W. Weik in 1922 that "... the case itself has been generously and frequently cited in the appellate court of other states."48 |
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It was after Lincoln knew the "Neither slavery nor ..." article was in the new state constitution that Lincoln took on the "Matson Slave Case." Lincoln knew the two judges involved were well aware of the anti-slavery articles in the new Constitution, but that the ratification vote was still six month away. None of the critics of Lincoln's conduct in that case seemed aware that October 1847 was between the Constitutional Convention debates and the ratification vote the following spring and supporters of the new constitution had a gentleman's agreement not to stir up the public over the slavery issue before the vote. The method and logic of the Convention delegates were that Supreme Court precedents were the authority and references for new Articles of the new Constitution. But, critics also ignored the fact that Matson was from Kentucky and could not vote for or against Lincoln or the new Constitution in any election anyway. The Matson slave case was a forgone conclusion even before trial. |
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Following that episode, while Abraham Lincoln was in Congress from 1847–1849, he remained consistent in the moral and legal principle of the Northwest Ordinance that "Neither Slavery nor ..." when he wrote to his life long friend Joshua Speed, "... When I was at Washington I voted for the Wilmot Proviso as good as forty times ..." As a refresher, the Wilmot Proviso read but, "Neither slavery nor involuntary servitude shall exist in the new territories ..." acquired from the Mexican War.49 |
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The historic significance of the trials of Nance was that Nance represented the legal personification of the definition of slavery over a period of thirteen years and three Supreme Court Appeals. The Nance v. Howard, 1828 verdict read, "A servant is a possession and CAN BE SOLD."50 The Bailey v. Cromwell, 1841 decision stated, "The sale of a free person is illegal." Nance Legins (Cox–Cromwell) Costley, circa 1813–1873, deserves a place in Illinois history, not only as the first slave freed by Abraham Lincoln, but also as an early African-American pioneer and a human rights advocate. |
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No one wrote a better tribute to Nance's worthiness than the local newspaper publisher, William H. Bates in 1870 when Nance was a well-known good neighbor.
... (Nance) She came here a chattel, with "no rights that a white man was bound to respect." For more than forty years she has been known here as a "negro" upon whom there was no discount, and her presence and services have been indispensable on many a select occasion. But she has outlived the era of barbarism, and now, in her still vigorous old age, she sees her race disenthralled, the chains that bound them forever broken, their equality before the law everywhere recognized and her children enjoying the elective franchise. A chapter in the history of a slave and in the progress of a nation.51
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Triumphantly, Nance Costley was quoted in Tazewell County history, "All my (eight) children were born in freedom" — in the land of Lincoln.52 |
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The concluding facts of this research illustrate clearly that for the final twenty-five years of his life, Abraham Lincoln was consistent from first to last in his professional, moral, and legal belief embodied in his historical legacy of the Thirteenth Amendment to the Constitution of the United States — the last best hope of earth that "Neither slavery nor involuntary servitude shall exist..." anywhere. |
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Notes
1 J. Young Scammon; Illinois Supreme Court Reports, V. #4; July term 1841, 70.
2 United States Constitution, Amendment 13; Signed into law by Abraham Lincoln, 31 January 1865; Ratified, December 1865.
3 William O. Douglas; Mr. Lincoln and the Negro; (New York: Atheneum, 1963), 22.
4 Nance Legins-Costley circa 1813–1873; The three appeals much of which were never published were: Nance, a woman of color v John Howard, 1827. After the court found Nance was much younger than she looked, the case was tried again as Nance, a girl of color v. John Howard, a full year later. Then later Nance appealed through Abolitionist David Bailey in Bailey v. Cromwell, 1841. [note: Supreme Court cases are in italic; while Circuit Court cases are in standard type face.]
5 Sidney Breese; Reports ... Supreme Court of the State of Illinois; V. 1. ( Kaskaskia: Robert K. Fleming, 1831), 183. Note this was the first book ever published in Illinois. Re-edited in 1859 by Judge Edwin Beecher, but not reprinted until 1872, "Nance, a girl of color, Plaintiff in Error, v. John Howard, Defendant in Error," 242.
6 J. Young Scammon; Ibid., 70.
7 Nance v. Cromwell; habeas corpus hearing; Sangamon County Court; October 1827.
Note: Habeas Corpus is a basic English and American protection of civil liberty and, by design, the only three party court hearing. Most civil cases argue party A verses party B; however, in a habeas corpus trial, person A pleads to a judge that person B is confined against their will by person C and since person B cannot appeal to a court themselves, person A pleads to court to demand that person C must bring the confined person B into a court of law for a hearing about the confinement. Thus the long title of Nance v. Cromwell read "Nance, a woman of color, by her next friend Thomas Cox v. Nathan Cromwell, 1827". Habeas Corpus was the only legal recourse available to slaves under the Federal Constitution of 1789, however, the barrier still remained that the slave had to find a white male willing to go to court in the slave's behalf, which was often impossible.
8 James Haines (1822–1909) was a lawyer, an educator, a historian and a contemporary of Abraham Lincoln. James Haines was the first to conclude that Nance was the first slave freed by Lincoln in the 1870s following the second publication of Sydney Breese' first volume of Illinois Supreme Court Reports and passed down the story as President of the Tazewell County Old Settlers' Society.
9 Abraham Lincoln and Dan Stone, "Protest in Illinois General Assembly," 1837.
10 Roy P. Basler, Editor; Collected Works of Abraham Lincoln; (Rutgers; 1953); Young Men's Lyceum Speech, 1838.
11 John C. Moses; Illinois Historical & Statistical: Fergus; Chicago; 1895; 1083.
12 Clarence W. Alvord; Constitutional Debates of 1847; I. S. H. L; v. # 14.
13 E. B. Washburne; Sketch of Edward Coles; (Chicago: Jansen, McClurg, 1882), 128.
14 Paul Simon; Freedom's Champion; (Carbondale: Southern Illinois U. Press, 1994).
15 Ibid; Paul Simon.
16 John M. Palmer; Personal Recollections of John M. Palmer (Cincinnati: Robert Clark Co.; 1901), 23.
17 A. T. Andreas; History of Cook County; (Chicago: A. T. Andreas; 1884), 244. "(Rev. Jeremiah) Porter attended the Presbyterian Synod of Illinois at Springfield, and there preached the opening sermon, an anti-slavery one; the Rev. Dr. Gideon Blackburn, a venerable father in the church, acting as a shield to the young preacher against a pro-slavery mob."
18 Harry Pratt; Lincoln: 1809–1839 Day by Day (Springfield: A. Lincoln Assoc.; 1941), 117.
19 Ibid. Roy P. Basler.
20 Ibid., Lincoln: Day by Day: January 1838.
21 Cox v. Howard, 1827; Court Clerk C. R. Matheny; Sup. Ct. Archives; Springfield, Ill., Case #156.
22 Nance v. Cromwell, 1827; Sangamon Court Record; Old State Capitol, Springfield, Ill.
23 Darrel Dexter; A House Divided: Union County, Illinois 1818–1865; (Anna, Illinois: Reppert Pubs., 1994), 42, 44, 172.
24 Nathaniel Cromwell, Jr.: Genealogy: Nathan was from an English nobleman "of the blood of the Lord Protector of England" who fought for the civil liberties of Englishmen against the royal abuse of power of King Charles I. Historical justice was served that a Negro should take him to court for African-American liberty.
25 David Bailey: Genealogy: Bailey was born of New Hampshire Puritan stock and married Sarah Ann Brown, daughter of an early known "Conductor of the Underground Railroad" in Chicago, Rufus Brown, Sr., who had boarded Rev. Jeremiah Porter who brought Abolitionism to Peoria, Ill. in 1835.
26 History of Tazewell County; (Chicago: Charles C. Chapman; 1879); 898.
27 Census Records: Genealogy: Nance's parents were found in Registry of Negroes and Mulattoes April 1810; they were Randol and Annachy Legins, who had three Black children, Reuben, Nance and Dice. Nance's first child Amanda Legins-Costley Lewis was born in 1836. Nance married free Black, Benjamin Costley while she was still legally a slave in October 1840. They raised eight children: Amanda, Elisa Jane, William, who fought in the Civil War; Mary, Leander, a son; Harriet, Eliza Ann, and James. Present descendants are unknown to the author, in spite of a search for Nance's family; If known, please call (309) 382–1880.
28 Ibid., Scammon.
29 Tazewell County Probate Court record, September 1836, Pekin, IL.
30 Charles Holmes, son; "Wm Holmes Genealogy"; McLean County Museum; #36.
31 Nathan Cromwell Genealogy; Maryland.
32 Cromwell v. Bailey, 1839; Tazewell County Court record; Pekin, IL.
33 William E. Baringer; Lincoln Day by Day; v. # 1 (Washington D.C; Lincoln Commission: 1960), 117.
34 Douglas L. Wilson and Rodney O. Davis; Herndon's Informants (Chicago: University of Illinois Press, 1998), 392.
35 Baringer; Ibid,124.
36 St. Paul's Church; Sangamon County Collections; Springfield, Illinois.
37 J. Young Scammon; Ibid, 70.
38 Ibid; Scammon, 71.
39 Ibid; Scammon, 72.
40 Benjamin P. Thomas; Abraham Lincoln; (New York: A.A. Knopf, 1952), 95.
41 Cox v. Howard, 1827; Illinois Supreme Court Docket; Archives.
42 Sangamon County Court; Illinois State Historical Library, Springfield, IL.
43 Edward Mitchell, J. of P.; Sangamon County; 6 October 1827; Illinois State Historical Library.
44 Baringer; Ibid., 163
45 Isaac Arnold; "The Illinois Bar Forty Years Ago"; (Springfield; Bar Assoc.:1881).
46 Scammon; #4; Borders v. Borders; December 1843, 344.
47 Ibid.; Scammon, #4; 231. Lyman Trumbull, an aggressively anti-slavery lawyer appealed the case of Kinney v Cook, 1841 the same time Lincoln appealed Bailey v. Cromwell. Both cases resulted in the same precedent, "The presumption of law in this state is in favor of liberty, and every person is supposed to be free, without regard to color." The court had discussed this verdict before Nance's case in December, 1840, but the Justice assigned to write the formal opinion, Theophilus W. Smith, was aging and ill and did not manage to hand down the verdict until six months after Nance's case in December, 1841. Both cases were important and necessary to affect change because of gender. Thomas Cook was male and could sue for wages, which was more difficult for females in court.
48 Jesse W. Weik & William Herndon; The Real Lincoln; (New York: Houghton Mifflin Co.; 1922), 146.
49 Benjamin P. Thomas; Ibid., 163.
50 N. Dwight Harris; History of Negro Servitude in Illinois (Chicago: A. C. McClurg, 1904), 100. It is generally accepted by legal historians that four slavery cases ended slavery in Illinois from 1841 to 1845. The concerted effort of "liberty lawyers" settled the issue with Bailey v. Cromwell, July 1841 for adult females; Kenney v. Cook, December, 1841 for adult males; Borders v. Borders, December, 1843 for children of indentures; and Jerrot v. Jerrot, December, 1845 for children and grand children of former "French slaves"; and slavery was dead. The 1848 Constitution was by then an official formality rather than a revolutionary change.
51 William H. Bates, (1841–1930); Pekin City Directory; (Pekin: Bates Press; 1870), 10.
52 William H. Bates; "Historical Souvenir: Dedication New Tazewell County Courthouse"(Pekin: Bates Press; 1916), 11.
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