With Us the Presumption Is in Favor of Liberty: Legal Personhood and Due Process Rights in 1840s and 1850s Illinois

This paper examines how free and enslaved African Americans in Illinois shaped national political debates over slavery through their encounters and engagement with the law during the 1840s. Unlike previous studies that chart the rise of the Republican Party during the turbulent 1850s, this paper shifts the focus from legislative minutes, newspapers, and campaign literature to legal records. Recent histories of the antebellum African American freedom struggle in the North show that free African American communities simultaneously fought for the abolition of slavery and for the end of racially discriminatory state laws, which curtailed access to farmland, education, jobs, and public services. In so doing, free and enslaved African Americans influenced national political debates over slavery. Building on this body of scholarship, this paper demonstrates how efforts by free and enslaved African Americans to demand that Illinois courts defend their civil liberties and rights during the 1840s compelled future Republican Party leaders Abraham Lincoln and Lyman Trumbull to grapple both with their personal views of slavery and their constitutional and political stance on the relationship of federalism and slavery. The paper focuses on Kinney v. Cook, Borders v. Borders, and In re Bryant. Together, these cases show that Lincoln and Trumbull, like their peers in the legal profession during this period, handled lawsuits where the outcome pivoted on whether residence in Illinois liberated an enslaved person. By arguing for or against the emancipatory effects of residence on free soil, Lincoln and Trumbull confronted the human costs of the constitutional questions that would fuel Northerners’ support for the Anti-Nebraska Movement and the Republican Party during the 1850s. Correspondingly, the records from these cases illustrate how the legal recognition of personhood, familial bonds, and due process rights mattered to African American clients as well as to lawyers and politicians.