Illinois Historical Law Guide

Contents

Legal Ages at a Glance

General Principles

A French beginning and an English legal system

Illinois changed hands more often than almost any other state. The French founded Cahokia in 1699 and Kaskaskia a few years later, and they governed the Illinois Country under French civil law and the Coutume de Paris, the customary law of Paris. Britain took the country in 1763. Virginia claimed it in 1778. The United States organized it under the Northwest Ordinance of 1787. It was part of Indiana Territory from 1800, a separate Illinois Territory from 1809, and a state on 3 December 1818.

The law that ended up governing was English. The new state adopted it by statute in 1819. From that year the common law of England, along with English statutes of a general nature passed before 1607, decided Illinois cases until the legislature changed the rule¹. That statute has survived every later revision of Illinois law. The French period left its mark on the records rather than on the rules, in the oldest land titles of the American Bottom.

Two features of the English system shape almost every Illinois record. First, husband and wife each owned property separately, and what the survivor took was governed by dower, explained below. Second, land went to all the children in equal shares from the Northwest Ordinance onward, so an Illinois estate divides among the whole family instead of passing to the eldest son². Probate stayed local the whole time. Wills, estates, and guardianships were handled by the courts of common pleas in the territorial years, then by a probate justice of the peace and the county commissioners' court, and later by the county court³.

Three legal statuses

Three legal statuses existed side by side in early Illinois, and most of the rules below depend on which one a person held. The 1818 Constitution barred any new introduction of slavery, protected indentures already registered, and freed the children born to registered servants, males at 21 and females at 18⁴. The Illinois Supreme Court held in Jarrot v. Jarrot (1845) that the descendants of people brought in as slaves under the French were free⁵. The Constitution of 1848 prohibited slavery, and the legislature repealed the last of the "Black Laws" on 7 February 1865. So a Black Illinoisan in the records before 1865 may appear as property, as a registered servant under indenture, or as a free person holding a court-issued certificate of freedom.

Legal Age of Adulthood

Twenty-one for a man and eighteen for a woman

Illinois had two ages of majority, 21 for a man and 18 for a woman. A statute in force from 1 July 1872 said so directly: men of 21 and women of 18 were of full age for all purposes, and below those ages they were minors⁶. The difference between the two ages matters constantly in research. An eighteen-year-old Illinois woman was an adult. She could sell land, make a will, sue, and marry without anyone's permission, at an age when her brother was still a minor. The same two ages were still the rule in 1950⁷.

The 1872 act did not invent the woman's age of 18. It restated a rule Illinois already had. The Revised Statutes of 1845 said plainly that "the minority of females shall cease at the age of eighteen years," and the same volume set 18 as the age at which a woman could make a will of her land and sell land she owned herself⁸. For a man the age was 21 throughout, taken from the English common law the state received in 1819. So for practical purposes the pair of ages, 21 and 18, holds from 1819 through 1950.

What a minor could and could not do

A person under the age of majority was called an "infant" in legal papers, whatever the age. A minor could own property outright. What the law limited was the power to give it away. A contract or a deed made by a minor held good unless the minor decided to undo it, and that could be done on reaching full age. The exception was "necessaries," meaning food, clothing, and the like suited to the minor's situation, for which the minor had to pay a fair price⁹.

Getting married did not make a minor an adult. When a young woman married, her guardian lost control over where she lived and how she was raised, but not over her property. As far as her property was concerned she stayed a minor until 18¹⁰.

Marriage

Who was old enough to marry

Illinois set two age limits, and both matched the ages of adulthood. A man of 21 and a woman of 18 could marry on their own. Younger couples could still marry if a parent or guardian agreed, but only down to a minimum age. Below that age no one could marry at all.

Those ages are remarkably steady. The territorial law in force when Illinois separated from Indiana already allowed a man of 17 and a woman of 14 to marry, and already required a parent's consent below 21 and 18¹¹. The state's own marriage act of 1827 used the same four ages¹², and they lasted until 1905.

In 1905 that minimum age was raised, and the way consent was given changed with it. The parent or guardian now had to appear in person before the county clerk in the county where the minor lived and swear to the relationship and to the minor's date of birth, place of birth, and residence¹³. That sworn statement sits in the license file, and it is often the best birth date on record for a young bride or groom.

A marriage made under the legal age, or without the consent the law required, still counted as a real marriage. It stayed valid unless a court canceled it. Only the spouse who had married too young could ask a court to do that, and only after reaching the legal age¹⁴. In practice an ancestor's underage or no-consent marriage was almost certainly valid, and the children of it legitimate.

Common-law marriage into the twentieth century

Illinois recognized common-law marriage, which means many real marriages left no license and no certificate. Through 30 June 1905, a couple who were free to marry, who agreed then and there to be husband and wife, and who lived together and were known as married, were lawfully married. No ceremony, no minister, and no county record were needed¹⁵. On the thinly settled prairie, where a clerk or a minister might be a day's ride away, this is how a great many couples married.

A new act took effect on 1 July 1905 and required a license and a ceremony for every marriage made in Illinois after 30 June 1905¹⁶. For a researcher the rule is a bright line. If a couple's relationship began on or before 30 June 1905, look for evidence that they agreed to marry, lived together, and were known as married. The marriage may be perfectly valid even though no license exists. If the relationship began after that date, expect a license and a return, and treat their absence as a real problem.

The 1905 act left a door open, and it shows up in the records. A couple already living as husband and wife could take out a license and be married under the act, and their children were then treated as legitimate¹⁷. A license taken out by a couple who had plainly been together for years is often this rather than a new marriage.

How a ceremonial marriage was made and recorded

Where there was a ceremony, the law was generous about who could perform it and about faiths that married their own members.

Any religious society could marry its members according to its own rules, a permission that ran all the way back to the territorial act¹⁸. From 1881 the Society of Friends had a route of its own written into the statute, and it is worth knowing because of the paperwork it leaves. The couple told a standing committee of an official meeting that they intended to marry, at least a week beforehand. They then appeared before official witnesses with a certificate giving the names and residences of both parties and of their parents if living. The certificate was signed by the couple and the witnesses, read aloud, and recorded in the meeting's own books rather than at the courthouse¹⁹. Illinois also honored a marriage that was valid where it took place, so a couple married across a state line was married in Illinois²⁰.

The restrictions on marriage

Some marriages were void from the start, and the list changed over time²¹:

• Bigamy. A marriage made while an earlier husband or wife was still living was void, and punishable, from 1819 onward.
• Close relatives. Marriage within the forbidden degrees was void. An 1843 act defined incest to reach parents, grandparents, brothers and sisters, uncles, aunts, and the like.
• First cousins. Marriage between first cousins was declared incestuous and void from 1887.
• Mental incapacity. A person the law considered insane could not make a valid marriage. This came from the common law before 1874 and from statute afterward. The statutes of the day used harsher words than these.

Marriage and race

A person held in slavery could not make a legal marriage, so there is no civil marriage record for someone in bondage. A legal marriage had to wait for freedom²².

Marriage between a white person and a person of color was forbidden from 1829 to 1874. The statute declared such a marriage null and void and punished the couple with a fine, whipping of up to thirty-nine lashes, and at least a year in prison. It also fined the clerk who knowingly issued the license, and fined the officer who performed the ceremony at least two hundred dollars and barred him from office afterward²³. The ban was dropped when the marriage law was rewritten in 1874, so an interracial couple could marry lawfully in Illinois from that year.

For couples who had married while one or both were enslaved, an act of 1891 settled the question directly. Such a marriage was made as valid and binding as if the couple had been free. Their children were legitimate and inherited on exactly the same footing as any other child, from brothers, sisters, and other relatives as well as from parents. The act also covered marriages made outside Illinois, so far as the right to inherit property inside the state was concerned²⁴. Until 1 July 1905 the general rule on common-law marriage did the rest. An agreement to be married, followed by living together and being known as married, made a valid marriage without any document at all.

Property Ownership

Which men could own land

The right to buy, hold, and sell land belonged to every free man in Illinois, of any race, and at any age. A man owned land the moment it came to him by inheritance, gift, or purchase. He did not need to own anything else, pay a tax, hold office, or be able to vote. Free Black and mixed-race men held and sold land on the same terms as white men and did so throughout the period. The restrictions on them concerned where they could live and whether they had registered, not whether they could hold title, and they appear under "Enslaved people and free people of color" below²⁵.

Land held by members of Indian nations is a different matter, and Illinois law is not where to look for it. That land was governed by federal treaties and acts of Congress, and it generally could not be sold without the federal government's consent²⁶.

A man held in slavery could own nothing. Anything in his possession belonged in law to the person who claimed him, although a registered servant under indenture could keep property he acquired for himself²⁷. A foreign-born man could buy and hold land, and the widow of a man born abroad had the same dower rights as if he had been born a citizen²⁸.

Women and land ownership

For a woman, everything turned on whether she was married. A single woman or a widow could buy, own, sell, mortgage, sue, and be sued exactly as a man could. A woman handling her own business in the deed books is almost always unmarried or widowed.

A married woman could not. Under the old English rule, which Illinois adopted in 1819, the law treated husband and wife as one person, and that person was the husband¹. Before 1861 her husband controlled her property, collected the rents from her land, and owned outright everything she had in the way of goods and money. Her contracts had no force on their own. Land she owned herself could be sold only by a deed she signed along with him, and only after an official questioned her privately, described below. Wealthy families got around the rule by putting property into a trust for her separate use. Deeds and court papers call an unmarried woman a feme sole, a married woman a feme covert, and the rule itself coverture.

The rule was dismantled in three steps, and each one changes what you should expect to find in the records:

From 1861, then, a wife's name on a deed to her own land is ordinary. After 1869 her earnings and whatever she bought with them were hers.

When a wife had to sign her husband's deed

A wife's signature on her husband's deed reflects how far dower reached, and in Illinois it reached far and lasted long.

Dower was a widow's right to use one-third of her husband's land for the rest of her life. She did not own that third and could not sell it, but no one could take it from her either. It covered every piece of land he had owned outright at any point during the marriage, not just what he still owned when he died, unless she had already signed the right away³².

Because dower reached every parcel the husband had ever held during the marriage, a buyer needed the wife to give it up. That is why a married man's deed of his own land carries his wife's signature. To give up her dower she signed the deed alongside him and then swore to it in front of an official. The official took her aside, out of her husband's hearing, and asked whether she was signing of her own free will. He then wrote on the deed that she was³³. Deeds often call this private questioning a "privy examination." The same private questioning was used when the couple sold land she owned in her own right, and for that the statute required her to be over 18³⁴.

That changed with the Married Women's Act. From 1874 a wife sold her own land without her husband signing the deed, on the same footing as a husband selling his. His signature was still wanted to give up his own dower in it³⁵.

A husband had a matching right of his own, called curtesy. If a child had been born alive of the marriage, a widower kept the use of all his late wife's land for the rest of his life and collected the income from it, while the children held the title. That was the rule Illinois received with the English common law in 1819, and it lasted until the state replaced it. From 1 July 1874 dower worked both ways. A surviving husband or wife alike took the use of one-third of the dead spouse's land for life, covering land held at any point during the marriage, and curtesy was abolished³⁶. Dower in this form outlasted 1950.

The practical consequence held throughout. While both husband and wife were living, each already had a claim on the other's land that would turn into dower at death. The only way to clear that claim off was for the other spouse to sign the deed too, which is why a sale of land owned by either one usually carries both signatures³⁵.

Forced sales became an exception in 1939. A sale on execution, judgment, or foreclosure passed the land free of the other spouse's future dower, and the officer running the sale paid that spouse its cash value out of the proceeds³⁷. So a sheriff's or master's deed after 1939 will not carry the spouse's signature, and the money owed to the spouse shows up in the report of sale instead.

The homestead exemption

Separately from dower, the Homestead Exemption Act of 1851 protected the family home from creditors. The lot and buildings lived in by a householder with a family could not be sold to pay debts, up to a value of $1,000, a figure raised in later years. The protection continued after the householder's death for the surviving spouse and children while they lived there, until the youngest child turned 21 and until the widow died³⁸.

The signing rule is the point for genealogists. Under the 1851 act a householder could give up the protection only in writing, signed and sworn to like a deed³⁹. Later law required the spouse to sign as well, and a husband's release did not bind the wife unless she signed too. That is why a sale of the family home characteristically carries both spouses' signatures, for homestead as well as for dower⁴⁰.

Which children could own land

A child could own land at any age, taking it by inheritance, gift, or purchase just as an adult did. Selling it was the problem, because a minor could undo his own deed on reaching full age. In practice a guardian managed a minor's land, and any sale went through the probate court on a petition, with the deed signed by the guardian under a court order and a bond. A guardian could also mortgage or lease a minor's land, but only up to the day the heir turned 21 if a boy or 18 if a girl⁴¹. A sale of a child's land therefore leaves a court file containing a petition, an order, a bond, and a deed signed by someone other than the owner, and that file usually names the family.

Witnessing a deed

An Illinois deed was made ready for recording in one of two ways. Either the seller swore to it in front of an official, meaning a judge, justice of the peace, notary, or clerk. Or someone who had signed the deed as a witness swore in court that he had watched it being signed⁴².

No Illinois statute set an age for a deed witness⁴². What the law asked was whether the person understood an oath and could describe what he had seen. In practice deed witnesses were adults, since a witness might have to appear in court years later.

Enslaved people and free people of color

A person held in slavery could own nothing, and anything in that person's possession belonged in law to the enslaver. Free people of color could and did own land in Illinois on the same terms of title as anyone else, and they appear in the deed and land-grant records accordingly.

The restrictions fell on where they could live, not on what they could own. Under the "Black Laws," a free person of color could live in the state only on two conditions. He had to show the county commissioners' court a certified court document proving he was free, which was then registered with the county, and he had to post a $1,000 bond promising he would not become a public charge. A person found without that certificate could be seized and hired out as a presumed runaway, and anyone who sheltered or employed such a person was fined⁴³. An 1853 act went further and tried to bar free Black people from moving into the state at all. These requirements produced valuable records of their own, including certificates of freedom, freedom registers, and bonds in the county files. All of them fell when the Black Laws were repealed in 1865.

Inheritance

One system for land and goods alike

Illinois used one set of rules for everyone who died without a will. Land, goods, and money all passed together, by the same rules, to the same people. The rule arrived with the Northwest Ordinance of 1787 and never left. Property went to the children in equal shares, and if a child had already died, that child's own children split the share their parent would have received⁴⁴. Daughters inherited equally with sons, and younger children with older⁴⁵. Property a parent had already given a child during his lifetime was counted against that child's share, so the children came out even⁴⁶.

What the surviving spouse took

The surviving spouse's share was reworked twice, and the date of death decides which rule applies. Under every version the widow, and after 1874 the widower too, also had dower and the family award described below.

The 1872 act made the surviving spouse's share the same for husbands and wives. For the first time it also gave a spouse who was left with children a one-third share of the goods and money outright, on top of dower⁴⁷. The Probate Act that took effect in 1940 enlarged the land share, giving a surviving spouse with children an outright one-third of the land, with the option to take dower instead⁴⁸. Reading the right version for the year of death can make or break a family reconstruction built from an estate division.

The widow's award

On top of any share, the surviving spouse received a family award: support for the spouse and the minor children. It came on top of whatever share of the estate the law already gave the survivor, and creditors could not touch it.

In the early statutes the award was specific property. It included one bed and bedding, the family's clothing, a milk cow and calf, her saddle and bridle, a horse worth forty dollars, household and kitchen furniture, and a year's provisions⁴⁹. A widow could give up any of those articles, or claim their cash value if the estate had none of them, and the administrator or the probate court fixed the sum⁵⁰.

By the end of the period the award was mostly money. The widow kept the family pictures, and the clothing, jewelry, and ornaments belonging to her and to her minor children. She also took a sum the appraisers judged reasonable to support herself and those children for the nine months after the death. That sum was at least $500, with up to $300 more for each of the deceased's minor children under 18. She could take goods from the estate at their appraised value instead of the cash⁵¹. The award is a separate probate record, and it names the spouse and the children.

Minors and guardians

A child inherited right away. The heirs owned the property from the moment the person died. Managing that inheritance fell to a guardian, who gave bond, invested the estate, reported to the court, and handed it over when the child came of age. That final settlement, at 21 for a son and 18 for a daughter, is one of the most valuable documents in Illinois genealogy. It dates the child's coming of age, which gives you a birth year within a year or so, and it frequently reveals a daughter's married surname.

Two words in these records mean something different from what you would expect. An "orphan" in Illinois probate meant a child whose father had died. The mother could be living, and guardianship passed to her⁵². That order of precedence was gone by the end of the period, when parents held equal rights and duties over a child and guardianship went to whichever one survived⁵³.

The second point is that guardianship was driven mainly by property. A guardian of the estate was needed whenever a child owned property, and the probate court appointed one even for a child whose father was alive and well, if the child held property that had not come from the father. That usually meant a gift by will from a grandparent or from the mother's family⁵⁴. A guardianship for a child with a living father is therefore a signal that the child inherited from somewhere else. The guardian of the person and the guardian of the estate could be two different people, so look for two records rather than one⁵³.

At fourteen, a child, boy or girl alike, could choose a guardian, subject to the court's approval. Below that age the court appointed one⁵⁵. A guardianship record in which the child does the choosing is therefore evidence that the child had reached 14, which narrows a birth year. A father could also name a guardian by deed or will, and a mother who was unmarried or widowed could do the same⁵⁶. Guardianship ended when the child came of age.

Children born outside marriage

Under the old English rule Illinois received in 1819, a child born to unmarried parents had no legal parents at all in the eyes of the law, and so could inherit from no one¹. Illinois changed that on the mother's side and provided a route to legitimacy on the father's.

On the mother's side, a child born outside marriage inherited from the mother, from any of her ancestors, and from anyone the mother herself could have inherited from. The child's own lawful children inherited in the child's place⁵⁷. On the father's side, the child became legitimate, and so able to inherit from him, if the parents married afterward and the father acknowledged the child as his own⁵⁸. Both rules were already in the compilation printed in 1833, and both were carried forward through the period.

Where fatherhood was disputed, it was settled in what the records call a bastardy proceeding, later a paternity proceeding. An unmarried mother accused a man under oath before a justice of the peace, and a man found responsible gave bond and was ordered to support the child⁵⁹. The value of the file is that it names the father.

Wills and executors

The age to make a will followed the ages of adulthood for land, and dropped lower for goods. An unmarried man of 21 or woman of 18 could leave land by will. Anyone of 17 could leave goods and money. A married woman could leave her separate property by will like anyone else⁶⁰. The Probate Act effective in 1940 replaced the split with a single age for a will of any property⁶¹.

A will made by a nineteen-year-old man in 1900 is therefore good for his goods and void for his land. The same will in 1945 is good for both.

A valid Illinois will was in writing and signed by the person making it, or by someone else at his direction and in his presence, and signed by two witnesses⁶². Two witnesses were required in every case, even for a will written out entirely in the person's own handwriting.

Illinois did allow a spoken will covering goods and money. Someone had to write it down within twenty days, and two or more witnesses who had heard it spoken, and who stood to gain nothing from it, had to swear to what was said⁶³. This is useful to know when a soldier's or a dying person's wishes turn up without a signed document.

A witness to a will could be any age. What mattered was that the witness got nothing under it. A gift to one of the witnesses was void as to that witness, which left the witness disinterested and so able to prove the will⁶⁴. So a gift to one of the two witnesses failed, and it also tells you the person writing the will thought that witness close enough to the family to leave something to.

The age to serve as executor was 17, with a catch that moves the record. If the person named as executor was under 21 when the will was proved, the probate court appointed a competent person to run the estate, under the court's direction and on bond, until the named executor turned 21. If the person named was under 17, the court simply granted letters as though no executor had been named⁶⁵. By the middle of the twentieth century a woman of 18 could serve as executrix or administratrix in her own right⁶⁶. Where a young person was named executor, expect the estate to be handled in an adult's name for the first few years.

Taxation

What was taxed

Illinois raised its money from a property tax, charged as a share of what the property was worth, on land and other taxable property⁶⁷. Early Illinois tax lists are therefore property lists, and an ancestor who owned no land may not appear on them at all. Local school and road taxes, also charged on property, made up the rest of the burden on a landholder. There was no state income tax before 1950, and a sales tax on retailers arrived only in 1933.

The road duty and the highway poll tax

The one tax that reached a person rather than his property was the road duty. It is the closest thing Illinois has to a poll list, because it names men who owned nothing.

Every able-bodied man between 21 and 50 owed his county a set number of days' work on the public roads each year. Each March the county commissioners' court decided how many days that year would require and wrote the number into the county record. Under the Revised Statutes of 1845 the number was between one and five days. An act passed the same session set it between one and two⁶⁸. A road tax on taxable property was charged on top of the labor.

After the counties reorganized, the duty worked one of two ways, and which one applied depends on the county.

In a county under township organization the work requirement continued, at one to three days a year for able-bodied men between 21 and 50. The poor and those the county judged mentally incapable were excused, in harsher words than these⁶⁹.

In a county not under township organization the duty was money. The highway commissioners met on the second Tuesday in March, listed the able-bodied men of the district between 21 and 50, and gave the list to their treasurer by the first of April. Each man on the list was charged between one and five dollars as a poll tax for highway purposes, due by the first Monday in June. The poor, those judged mentally incapable, ministers in actual charge of a church, and school trustees, directors, and similar officers were excused, and men living inside a city or incorporated village were left off the list. A poor man who could not pay but was willing to work could work the tax off on the roads at a dollar a day⁶⁹.

Either way the record amounts to the same thing: an annual, county-level list of the able-bodied men of a road district, by name, within a known age range. Where a man drops off the list while still appearing elsewhere in the records, his fiftieth birthday or an illness is usually the explanation, rather than a move out of the county.

Taxable ages at a glance

Courts

Jury service

Jury service in Illinois was long limited by race, sex, and paying tax. To serve on a jury under the act of 1827, a man had to be white, free, a taxpayer, a citizen by birth or naturalization, between 21 and 60, of sound mind, and not disabled⁷⁰. The Revised Statutes of 1845 carried the same rule forward and added a list of officers who were excused, among them judges, county commissioners, clerks, sheriffs, coroners, postmasters, and licensed attorneys⁷¹.

From 1874 the test shifted from paying tax to voting. The county board drew the jury list from at least one-tenth of the registered voters of each town or precinct. From that list it chose men aged 21 to under 60 who were in possession of their faculties, not infirm, of fair character and sound judgment, well informed, and able to understand English⁷².

Owning land was never part of it. Illinois required no landholding of a juror at any point before 1950. That was true both of the men called for regular jury duty and of a bystander pulled in from the courthouse to finish filling a jury⁷³. Where a jury commissioners' book of the twentieth century records whether a man was a householder or a landowner, it is recording a fact about him, not testing whether he qualified.

Two enlargements matter for research. Black men became eligible with the rewriting of the jury law in 1874, which dropped the word "white" and tied jury service to the vote. Behind that stood the repeal of the Black Laws in 1865 and the ratification of the Fifteenth Amendment in 1870⁷⁴.

Women became eligible on 1 July 1939. The Illinois Supreme Court had held in 1925 that the Nineteenth Amendment did nothing to make a woman liable or eligible for jury service, and an attempt to admit women by popular vote was struck down because the legislature could not hand the question to the voters⁷⁵. Two acts approved on the same day, 12 May 1939, and in force that 1 July, did it. One told the county board of each county to make its jury list from at least one-tenth of the registered voters of each sex in every town or precinct. The other, for counties with jury commissioners, told the commissioners to list all voters of each sex between 21 and 65 who were qualified for jury duty, entering each name in a book with the person's age, occupation, residence, and whether a householder or a landowner⁷⁶. The Supreme Court upheld the change that August⁷⁷. Before 1 July 1939, a jury that heard an ancestor's case was a jury of men.

Criminal responsibility

Illinois fixed the age of criminal responsibility by statute. A child under 10 could not be found guilty of any crime. A child of 10 to 14 could be convicted only if the child knew right from wrong. At 14 a child carried full criminal responsibility⁷⁸.

From 1899 the records move. Illinois created the first juvenile court in the United States. The Juvenile Court Act, approved 21 April 1899 and in force that 1 July, gave the circuit and county courts authority over dependent, neglected, and delinquent children under 16. It treated the case as care rather than crime, with a petition in place of an indictment and a ban on jailing a child under 12 alongside adult convicts. In a county of more than 500,000 people the judges picked one of their number to hear these cases in a room set aside for the purpose, and the findings went into a book called the Juvenile Record⁷⁹. The Cook County court first sat on 3 July 1899, and the arrangement was quickly copied elsewhere. The effect for research is a relocated record. From 1899, a child under 16 has a juvenile court file rather than a criminal case file, and those files are usually closed.

Witnesses

A witness of any age could testify, so long as he or she understood what an oath meant and could describe what happened. No statute set a minimum age. The trial judge questioned a child before allowing testimony, and with a very young child the question became how much weight the jury should give the testimony, rather than whether the child could testify at all⁸⁰.

Two nineteenth-century rules limited who could take the stand. A person of color could testify against a white person only from 1865. Before that, a statute barred any Black, mixed-race, or Native person from testifying in any court, in any case, against a white person, and it counted anyone with one-fourth or more Black ancestry as mixed-race⁸¹. The rule fell with the repeal of the Black Laws.

A woman could testify throughout the period. The rules that reached a married woman's testimony were the ordinary common-law rules about husbands and wives, which by the middle of the twentieth century allowed a husband or wife to testify for or against the other, with private communications between them protected except in defined situations⁸².

Sources and Where to Verify

Constitutions

Illinois Constitution of 1818. Art. VI (slavery, registered indentures, and the freedom of servants' children at 21 and 18). Reprinted in The Revised Laws of Illinois (1833), the constitution at pp. 33–58 and art. VI at pp. 43–44, and in the front matter of the Revised Statutes of 1845. Digital images. Internet Archive. https://archive.org/details/revisedstatuteso00illi (accessed 4 August 2026).

Illinois Constitution of 1848. Art. XIII (slavery prohibited); art. XIV (exclusion of free persons of color). Text excerpted from Compilation of All the General Laws Concerning Real Estate and the Title Thereto, in the State of Illinois (1849), 63–106; digital images, Illinois Digital Archives, Illinois State Library. https://idaillinois.org/digital/collection/isl2/id/211 (accessed 8 August 2026).

Illinois Constitution of 1870. The frame of government for the last decades covered here. Constitution of the State of Illinois, Adopted in Convention, May 18th, 1870, and Ratified by the People of the State, July 2d, A.D. 1870 (Chicago: The Western News Company, 1870); digital images, Internet Archive. https://archive.org/details/cu31924024668232 (accessed 8 August 2026).

Northwest Ordinance of 1787. Sec. 2 (descent of intestate estates and the widow's third); art. 3 (Indian lands not to be taken without consent). Transcription. Avalon Project, Yale Law School. https://avalon.law.yale.edu/18th_century/nworder.asp (accessed 4 August 2026).

Codes and Compilations

Hurd, Harvey B., comp. and ed. Revised Statutes of the State of Illinois, 1893. Chicago: Chicago Legal News Company, 1893. The acts as amended, each printed with the derivation note that traces it to its source act: ch. 28 (common law), ch. 30 (conveyances), ch. 39 (descent), ch. 41 (dower), ch. 64 (guardians and wards), ch. 68 (husband and wife), ch. 78 (jurors), ch. 89 (marriages), ch. 121 (roads and bridges), ch. 148 (wills). Digital images. Internet Archive. https://archive.org/details/revisedstatutes00hurdgoog (accessed 4 August 2026).

Illinois Compiled Statutes (current). Useful for tracing a rule forward and reading its source note: the Common Law Act (5 ILCS 50/1), the Marriage and Dissolution of Marriage Act (750 ILCS 5/, including § 214 on common-law marriage), and the Probate Act (755 ILCS 5/). Illinois General Assembly. https://www.ilga.gov/Legislation/ILCS/Chapters (accessed 9 August 2026).

Pope, Nathaniel, comp. Pope's Digest, 1815. Edited by Francis S. Philbrick. 2 vols. Collections of the Illinois State Historical Library 28, 30. Springfield: Illinois State Historical Library, 1938–40. The laws in force in Illinois Territory, reprinted from Pope's original Kaskaskia edition of 1815. This is the essential volume for the years before statehood, and the source of the territorial rules cited above: vol. 1 carries the Northwest Ordinance at pp. 14–15, dower at pp. 119–21, and executors, administrators, and guardians at pp. 195–216, including the choice of a guardian at p. 199 and the sale of a minor's land at pp. 214–15; vol. 2 carries the marriage act at pp. 393–96, grand jurors at pp. 351–52, and the acts on servants and on free people of color at pp. 467–76. Digital images. Internet Archive. Vol. 1: https://archive.org/details/popesdigest181528illi. Vol. 2: https://archive.org/details/popesdigest181530illi (accessed 9 August 2026).

The Revised Laws of Illinois. Vandalia: Printed by Greiner & Sherman, 1833. The first full compilation of state law, and the bridge between the territorial volumes and the revision of 1845. It carries the act of 1819 declaring what laws are in force, p. 425; conveyances, including the wife's separate examination, pp. 129–38; bastardy, pp. 334–35; the jurors act of 1827, pp. 378–79; the marriage act of 1827, pp. 445–46; the Black Law of 1829, pp. 457–66, whose § 3 at p. 465 barred marriage between a white person and a person of color; the revenue act, pp. 513–33; and wills and testaments, pp. 611–26. Digital images. Internet Archive. https://archive.org/details/revisedlawsofill1833illi (accessed 4 August 2026).

Revised Statutes of the State of Illinois. Springfield: William Walters, printer, for Walters & Weber, public printers, 1845. The essential antebellum volume, and the source of most citations above: ch. 16 (bastardy), ch. 24 (conveyances), ch. 30 (criminal jurisprudence), ch. 34 (dower, p. 198), ch. 40 (evidence), ch. 47 (guardian and ward, pp. 264–71), ch. 58 (jurors, p. 308), ch. 62 (laws), ch. 69 (marriages, p. 353), ch. 74 (free Black and mixed-race people, p. 387), ch. 93 (roads, p. 485), and ch. 109 (wills, p. 536, which also carries the rules of descent and the administration provisions). The Appendix at the back prints acts of the same session left out of the revision, including the road-labor amendment at pp. 591–92. Digital images. Internet Archive. https://archive.org/details/revisedstatuteso00illi (accessed 4 August 2026).

The Revised Statutes of the State of Illinois, A.D. 1874. Compiled and edited by Harvey B. Hurd, Commissioner of Revision. Springfield: Illinois Journal Company, 1874. The base of Illinois statute law for the next two generations, arranged in numbered chapters that stayed stable until 1993; it prints the revised acts of 1871–2 and 1873–4 together with the other general statutes in force on 1 July 1874. Digital images. HathiTrust. https://babel.hathitrust.org/cgi/pt?id=hvd.hl48yj (accessed 4 August 2026). The Harvard copy, in full view.

Session Laws

All the Laws of the State of Illinois Passed by the Thirty-Seventh General Assembly. Compiled by Myra Bradwell. Chicago: Chicago Legal News Company, 1891. The act validating marriages contracted while one or both parties were enslaved, p. 116. This is the Legal News edition; the official session volume paginates differently. Digital images. Internet Archive. https://archive.org/details/lawsofstateofill1891illi (accessed 4 August 2026).

General Laws of the State of Illinois, Passed by the Eighteenth General Assembly. Springfield: Lanphier & Walker, Printers, 1853. The act to prevent the immigration of free Black people into the state, pp. 57–58. Digital images. Internet Archive. https://archive.org/details/lawsofstateofill1853illi (accessed 4 August 2026).

General Laws of the State of Illinois, Passed by the Seventeenth General Assembly. Springfield: Lanphier & Walker, Printers, 1851. The homestead act of 1851, p. 25. Digital images. Internet Archive. https://archive.org/details/lawsofstateofillin17illi (accessed 4 August 2026).

Historic Illinois Statutes. A finding aid to the digitized compilations and session volumes, arranged by year. Useful for the revenue acts and other volumes not cited individually here. The Advancing Genealogist. https://advancinggenealogist.com/resources/historic-illinois-statutes/ (accessed 4 August 2026).

Illinois Laws and Statutes. Digitized session laws and revised statutes, by session, including the territorial volumes. Western Illinois University Libraries. https://www.wiu.edu/libraries/govpubs/illinois_laws/ (accessed 4 August 2026).

Laws of the State of Illinois Enacted by the Forty-First General Assembly at the Regular Biennial Session. Springfield: Phillips Bros., State Printers, 1899. The Juvenile Court Act, p. 131. Digital images. Internet Archive. https://archive.org/details/lawsofstateofill1899illi (accessed 4 August 2026).

Laws of the State of Illinois Enacted by the Forty-Fourth General Assembly, Regular Biennial Session. Springfield: Illinois State Journal Co., State Printers, 1905. The marriage act, pp. 317–18. Digital images. Internet Archive. https://archive.org/details/lawsofstateofill1905illi (accessed 4 August 2026).

Laws of the State of Illinois Enacted by the Sixty-First General Assembly at the Regular Biennial Session. [Springfield]: Printed by authority of the General Assembly of the State of Illinois, [1939]. The two acts opening jury service to women, Senate Bills 88 and 89 at pp. 691 and 692; the act freeing judicial sales from future dower, Senate Bill 228 at pp. 690–91. Digital images. HathiTrust. https://babel.hathitrust.org/cgi/pt?id=osu.32437122760909 (accessed 4 August 2026). The Ohio State University copy, in full view.

Laws of the State of Illinois, Enacted by the Thirty-Fifth General Assembly. Springfield, Ill.: H. W. Rokker, Printer and Binder, 1887. The act barring marriage between first cousins, p. 225. Digital images. Internet Archive. https://archive.org/details/lawsofstateofill1887illi (accessed 4 August 2026).

Laws of the State of Illinois, Passed by the Thirteenth General Assembly. Springfield: Walters & Weber, Public Printers, 1843. The incest act, p. 155. Digital images. Internet Archive. https://archive.org/details/lawsofstateofill1843illi (accessed 4 August 2026).

Public Laws of the State of Illinois, Passed by the Twenty-Fourth General Assembly. Springfield: Baker & Phillips, Printers, 1865. The act repealing the Black Laws, p. 105. Digital images. Internet Archive. https://archive.org/details/lawsofstateofillpub1865illi (accessed 4 August 2026).

Public Laws of the State of Illinois, Passed by the Twenty-Second General Assembly. Springfield: Bailhache & Baker, Printers, 1861. The Married Women's Property Act, p. 143. Digital images. Internet Archive. https://archive.org/details/lawsofstateofill1861illi (accessed 4 August 2026).

Public Laws of the State of Illinois, Passed by the Twenty-Seventh General Assembly. Springfield: Illinois State Journal Print, 1872. Bastardy, p. 198; descent of property, p. 352; guardians and wards, p. 469; jurors, p. 516. Digital images. Internet Archive. https://archive.org/details/lawsofstateofill1871illi (accessed 4 August 2026).

Court Cases

Bruce v. McCormick. 396 Ill. 428 (1947).

Cartwright v. McGown. 121 Ill. 388, 12 N.E. 737 (1887).

Jarrot v. Jarrot. 2 Gilman (7 Ill.) 1 (1845).

Kibbe v. Ditto. 93 U.S. 674 (1876).

People ex rel. Denny v. Traeger. 372 Ill. 11, 22 N.E.2d 679 (1939). The 1939 woman-juror amendments and their effective date.

People ex rel. Fyfe v. Barnett. 319 Ill. 403 (1925).

Swiney v. Womack. 343 Ill. 278 (1931).

Secondary and Reference Works

Bridges, Roger D. "The Illinois Black Codes." Illinois History Teacher 3, no. 2 (1996): 2–12. The Illinois Periodicals Online copy is no longer served; for the record of publication see ERIC, Institute of Education Sciences. https://eric.ed.gov/?id=EJ526708 (accessed 8 August 2026).

Dexter, Darrel. Bondage in Egypt: Slavery in Southern Illinois. Cape Girardeau, Mo.: Center for Regional History, Southeast Missouri State University, 2011.

Heerman, M. Scott. The Alchemy of Slavery: Human Bondage and Emancipation in the Illinois Country, 1730–1865. Philadelphia: University of Pennsylvania Press, 2018.

"Homestead Rights in Illinois and the Non-Titleholding Spouse Dilemma." Attorneys' Title Guaranty Fund. The 1851 act and its later form. https://www.atgf.com/underwriting/news/homestead-rights-illinois-and-non-titleholding-spouse-dilemma (accessed 4 August 2026).

Illinois Secretary of State, Illinois State Archives. "100 Documents." Images of the Black Law of 1819, the Black Law of 1829, Jarrot v. Jarrot, and the Juvenile Court Act, with explanations. https://www.ilsos.gov/departments/archives/online-exhibits/100-documents/main-menu2.html (accessed 8 August 2026).

Sangamon County Historical Society. "First women jurors." Dates the 1930 referendum, its invalidation, and the 1939 act. SangamonLink. https://sangamoncountyhistory.org/first-women-jurors/ (accessed 9 August 2026).

U.S. Department of Labor, Women's Bureau. The Legal Status of Women in the United States of America, January 1, 1948: Report for Illinois. Bulletin of the Women's Bureau, No. 157-12 (Revised). Washington: Government Printing Office, 1949. Prepared by Sara Louise Buchanan. The edition to use for this guide: it states each rule as it stood on 1 January 1948, inside the period covered here, with the Illinois Revised Statutes chapter and section then in force. Digital images. FRASER, Federal Reserve Bank of St. Louis. https://fraser.stlouisfed.org/files/docs/publications/women/b0157-12-rev_dolwb_1949.pdf (accessed 4 August 2026).

U.S. Department of Labor, Women's Bureau. The Legal Status of Women in the United States of America: Report for Illinois, as of January 1, 1960. Bulletin 157-12 (Revised). Washington: Government Printing Office, 1960. Cited here only for three points the 1948 edition does not reach: a minor's choice of guardian at 14, the splitting of guardianship of the person from guardianship of the estate, and the age to serve as executrix. Digital images. FRASER, Federal Reserve Bank of St. Louis. https://fraser.stlouisfed.org/files/docs/publications/women/b0157_12_dolwb_1960.pdf (accessed 4 August 2026).

"Who Can I Marry? A Chicago History." Chicago Public Library. Illinois marriage restrictions by date, with references to the statutes. https://www.chipublib.org/blogs/post/who-can-i-marry-a-chicago-history-2/ (accessed 4 August 2026).

Citations

1. Revised Statutes of the State of Illinois (Springfield: William Walters, printer, for Walters & Weber, public printers, 1845), ch. 62 ("Laws"), § 1, p. 337; digital images, Internet Archive (https://archive.org/details/revisedstatuteso00illi : accessed 4 August 2026). The section carries forward "An Act declaring what Laws are in force in this state," approved and in force 4 February 1819, printed in The Revised Laws of Illinois (Vandalia: Printed by Greiner & Sherman, 1833), 425; digital images, Internet Archive (https://archive.org/details/revisedlawsofill1833illi : accessed 4 August 2026). The rule descends through the Revised Statutes of 1874, ch. 28, to 5 ILCS 50/1. ↩ ↩ ↩
2. Northwest Ordinance of 1787, sec. 2; transcription, Avalon Project, Yale Law School (https://avalon.law.yale.edu/18th_century/nworder.asp : accessed 4 August 2026). The ordinance was reprinted at the front of the territorial digest, Nathaniel Pope, comp., Pope's Digest, 1815, ed. Francis S. Philbrick, 2 vols., Collections of the Illinois State Historical Library 28, 30 (Springfield: Illinois State Historical Library, 1938–40), 1:14–15; digital images, Internet Archive (https://archive.org/details/popesdigest181528illi : accessed 9 August 2026). Restated at Revised Statutes of 1845, ch. 109 ("Wills"), § 46, pp. 545–46. ↩
3. For the territorial arrangement, Pope, Pope's Digest, 1815, 1:195–216 ("Executors & Administrators"), giving probate business to the courts of common pleas; digital images, Internet Archive (https://archive.org/details/popesdigest181528illi : accessed 9 August 2026). For the state arrangement, Revised Statutes of 1845, ch. 109 ("Wills"), §§ 1–10, pp. 536–38, and ch. 47 ("Guardian and Ward"), §§ 1–3, pp. 264–65 (probate business in the court of probate and the county commissioners' court). ↩
4. Illinois Constitution of 1818, art. VI, § 1 (no new introduction of slavery; indentures already made preserved; no male over 21 or female over 18 to be held to serve under any indenture thereafter made). Reprinted in The Revised Laws of Illinois (Vandalia: Printed by Greiner & Sherman, 1833), art. VI at pp. 43–44; digital images, Internet Archive (https://archive.org/details/revisedlawsofill1833illi : accessed 10 August 2026). An image of the original is in Illinois Secretary of State, Illinois State Archives, "100 Documents." ↩
5. Jarrot v. Jarrot, 2 Gilman (7 Ill.) 1 (1845). ↩
6. "An Act in regard to guardians and wards," approved 10 April 1872, in force 1 July 1872, § 1, headed "Who minors"; printed in Harvey B. Hurd, comp. and ed., Revised Statutes of the State of Illinois, 1893 (Chicago: Chicago Legal News Company, 1893), ch. 64, § 1; digital images, Internet Archive (https://archive.org/details/revisedstatutes00hurdgoog : accessed 4 August 2026). ↩
7. U.S. Department of Labor, Women's Bureau, The Legal Status of Women in the United States of America, January 1, 1948: Report for Illinois, Bulletin of the Women's Bureau, No. 157-12 (Revised) (Washington: Government Printing Office, 1949), 3, § 1, citing Ill. Rev. Stat. ch. 3, § 283 (males of the age of 21 and females of the age of 18 years are considered of legal age for all purposes); digital images, FRASER, Federal Reserve Bank of St. Louis (https://fraser.stlouisfed.org/files/docs/publications/women/b0157-12-rev_dolwb_1949.pdf : accessed 4 August 2026). Prepared by Sara Louise Buchanan; the report states the law as it stood on 1 January 1948. ↩
8. Revised Statutes of 1845, ch. 47 ("Guardian and Ward"), § 8, p. 266 ("and the minority of females shall cease at the age of eighteen years"); ch. 109 ("Wills"), § 1, p. 536 (will of land at 21 if male, 18 if female); and ch. 24 ("Conveyances"), § 17, pp. 106–07 (wife conveying her own land, she being above 18); digital images, Internet Archive (https://archive.org/details/revisedstatuteso00illi : accessed 4 August 2026). The same ages stood in the previous compilation: The Revised Laws of Illinois (1833), 611 (wills) and 129–38 (conveyances). ↩
9. Women's Bureau, Report for Illinois (1948), 3, § 2, citing Ill. Rev. Stat. ch. 121½, § 2 for the necessaries rule and Swiney v. Womack, 343 Ill. 278, 287 (1931), for the voidable character of a minor's contract or conveyance, married or unmarried. ↩
10. Women's Bureau, Report for Illinois (1948), 3, § 2, citing Ill. Rev. Stat. ch. 3, § 466. ↩
11. "An Act Regulating Marriages," passed 17 September 1807, §§ 1, 3, in Nathaniel Pope, comp., Pope's Digest, 1815, ed. Francis S. Philbrick, 2 vols., Collections of the Illinois State Historical Library 28, 30 (Springfield: Illinois State Historical Library, 1938–40), 2:394–95; digital images, Internet Archive (https://archive.org/details/popesdigest181530illi : accessed 9 August 2026). Section 1 allowed the marriage of "Male persons of the age of seventeen years, and female persons of the age of fourteen years"; § 3 forbade the marriage of a male under 21 or a female under 18 without the consent of the father, or on his death or incapacity the mother or guardian. This act of the Indiana Territory legislature remained in force in Illinois Territory and was reprinted in Pope's compilation of the laws then in force. ↩
12. "An Act concerning Marriages," in force 1 June 1827, § 1, in The Revised Laws of Illinois (Vandalia: Printed by Greiner & Sherman, 1833), 445 (all male persons over the age of seventeen years, and females over the age of fourteen years, may contract and be joined in marriage, provided that in all cases where either party is a minor the consent of parents or guardians be first had); § 5, p. 446 (no license for a male under 21 or a female under 18 without the consent of the father, or if he be dead or incapable, the mother or guardian); digital images, Internet Archive (https://archive.org/details/revisedlawsofill1833illi : accessed 4 August 2026). Carried forward in the same words as Revised Statutes of 1845, ch. 69 ("Marriages"), § 1, p. 353, and re-enacted without the consent proviso, which moved to the license sections, as Revised Statutes of 1893, ch. 89, §§ 3, 6–7. ↩
13. "An Act to amend sections three (3), four (4), six (6), thirteen (13) and fifteen (15) of an act entitled, 'An act to revise the law in relation to marriages,' approved Feb. 27, 1874, in force July 1, 1874," in Laws of the State of Illinois Enacted by the Forty-Fourth General Assembly, Regular Biennial Session (Springfield: Illinois State Journal Co., State Printers, 1905), 317–18, amending § 3; digital images, Internet Archive (https://archive.org/details/lawsofstateofill1905illi : accessed 4 August 2026). The amended § 3 left the without-consent ages at 21 and 18 and set the minimum with consent at 18 for a male and 16 for a female; the same ages still stood at the end of the period, Women's Bureau, Report for Illinois (1948), 9, § 18, citing Ill. Rev. Stat. ch. 89, § 3. ↩
14. Women's Bureau, Report for Illinois (1948), 9, § 18, citing People v. Ham, 206 Ill. App. 543, 550 (1917). ↩
15. Cartwright v. McGown, 121 Ill. 388, 12 N.E. 737 (1887). ↩
16. Laws of 1905, 318, amending § 4 of the act of 1874: the proviso closing that section declared all marriages commonly known as common-law marriages thereafter entered into null and void unless, after entering into one, the parties obtained a license and had a marriage solemnized as the act provides. The license requirement itself, in § 6, was older — it stood in the same words in Revised Statutes of 1893, ch. 89, § 6, as amended in 1889 — so it is the 1905 proviso, not the license section, that ended common-law marriage. Now 750 ILCS 5/214. ↩
17. Laws of 1905, 318, amending § 4 of the act of 1874. ↩
18. Revised Statutes of 1845, ch. 69, § 3; carried forward as Revised Statutes of 1893, ch. 89, § 5. The same permission ran back to the territorial act, which allowed "the society of Christians, called Quakers, in their public meetings" to join parties in marriage according to their own rules and usages: Pope, Pope's Digest, 1815, 2:394. ↩
19. Revised Statutes of 1893, ch. 89, § 4, as amended by act approved 30 May 1881, in force 1 July 1881, Laws of the State of Illinois, 1881, 112; the Friends provision was carried forward unchanged in the amended § 4 of 1905, Laws of 1905, 318. ↩
20. Illinois followed the general rule that a marriage valid where celebrated is valid in Illinois; the act of 1905 reached only marriages "contracted in this State." See Laws of 1905, 318, amending § 4; and Women's Bureau, Report for Illinois (1948), 9, § 18. ↩
21. "An Act to punish the crime of incest," in force 7 February 1843, in Laws of the State of Illinois, Passed by the Thirteenth General Assembly (Springfield: Walters & Weber, Public Printers, 1843), 155, § 1; digital images, Internet Archive (https://archive.org/details/lawsofstateofill1843illi : accessed 4 August 2026). First cousins were added by "An Act to amend section one of 'An act to revise the law in relation to marriages,'" approved 15 June 1887, in Laws of the State of Illinois, Enacted by the Thirty-Fifth General Assembly (Springfield, Ill.: H. W. Rokker, Printer and Binder, 1887), 225, § 1; digital images, Internet Archive (https://archive.org/details/lawsofstateofill1887illi : accessed 4 August 2026). For mental incapacity see Revised Statutes of 1893, ch. 89, § 2. Bigamy was void and punishable from 1819; see also "Who Can I Marry? A Chicago History," Chicago Public Library. ↩
22. The territorial and state codes recognized no marriage of a person held in bondage, and provided instead for indentures and registration of servants: "An Act Concerning the introduction of Negroes and Mulattoes into this Territory," passed 17 September 1807, in Pope, Pope's Digest, 1815, 2:467–73; digital images, Internet Archive (https://archive.org/details/popesdigest181530illi : accessed 9 August 2026). The point is settled the other way round by the curative act of 1891, which had to make such marriages valid by statute after the fact; see note on that act below. ↩
23. "An Act relative to Free Negroes, Mulattoes, Servants and Slaves," § 3, in The Revised Laws of Illinois (1833), 465 (barring marriage between a white person and a person of color, declaring such marriages null and void, and imposing penalties on the parties, on the clerk who issued the license, and on the officer who solemnized it); digital images, Internet Archive (https://archive.org/details/revisedlawsofill1833illi : accessed 4 August 2026). Carried forward as Revised Statutes of 1845, ch. 69, § 2, p. 353. The prohibition was not carried into "An act to revise the law in relation to marriages," approved 27 February 1874, in force 1 July 1874, printed in Revised Statutes of 1893, ch. 89, whose § 1 reaches only the degrees of kindred and whose § 2 reaches only mental incapacity. ↩
24. "An Act to establish the validity of marriages contracted wherein one or both of the parties were slaves at the time, and to establish the legitimacy of their offspring, as to the right to inherit property," approved 15 May 1891, in force 1 July 1891, in All the Laws of the State of Illinois Passed by the Thirty-Seventh General Assembly, comp. Myra Bradwell (Chicago: Chicago Legal News Company, 1891), 116; digital images, Internet Archive (https://archive.org/details/lawsofstateofill1891illi : accessed 4 August 2026). Printed also as Revised Statutes of 1893, ch. 89, § 18. ↩
25. No Illinois statute limited the right of a free person of color to acquire, hold, or convey land. The conveyancing chapters are written in general terms and impose no racial restriction: Revised Statutes of 1845, ch. 24 ("Conveyances"), §§ 1–2, p. 102, and "An Act concerning conveyances of Real Property," The Revised Laws of Illinois (1833), §§ 1–2, pp. 129–30. The disabilities imposed by the Black Laws reached residence, registration, testimony, and the like rather than title — Revised Statutes of 1845, ch. 74, §§ 1–5, p. 387 — and a registered servant could hold property he acquired to his own use, ibid., § 21. ↩
26. Land held by members of Indian nations was governed by federal treaty and statute rather than by Illinois law, and was generally inalienable without federal consent; the Northwest Ordinance itself declared that Indian "lands and property shall never be taken from them without their consent." Northwest Ordinance of 1787, art. 3; transcription, Avalon Project, Yale Law School (https://avalon.law.yale.edu/18th_century/nworder.asp : accessed 9 August 2026). Illinois territorial law also limited when a member of an Indian nation could testify, Pope, Pope's Digest, 1815, 2:529. ↩
27. Revised Statutes of 1845, ch. 74 ("Negroes, Mulattoes, &c."), § 21, p. 387. ↩
28. Revised Statutes of 1845, ch. 34 ("Dower"), § 2, p. 198 ("The widow of an alien shall be entitled to dower of the estate of her husband, in the same manner as if such alien had been a native born citizen of the United States"). ↩
29. "An Act to protect Married Women in their separate property," approved 21 February 1861, in force 24 April 1861, in Public Laws of the State of Illinois, Passed by the Twenty-Second General Assembly (Springfield: Bailhache & Baker, Printers, 1861), 143, § 1; digital images, Internet Archive (https://archive.org/details/lawsofstateofill1861illi : accessed 4 August 2026). The Supreme Court of the United States quoted and dated the act in Kibbe v. Ditto, 93 U.S. 674, 676 (1876), and the rule as codified is at Revised Statutes of 1893, ch. 68 ("Husband and Wife"), § 9. ↩
30. Revised Statutes of 1893, ch. 68, §§ 7–8; from the earnings act of 1869. ↩
31. Revised Statutes of 1893, ch. 68, § 9 (a married woman may own, in her own right, real and personal property obtained by descent, gift or purchase, and manage, sell and convey the same to the same extent and in the same manner that the husband can property belonging to him), and §§ 1–2 (suing and being sued without joining her husband); from "An Act to revise the law in relation to husband and wife," approved 30 March 1874, in force 1 July 1874. ↩
32. Revised Statutes of 1845, ch. 34 ("Dower"), § 1, p. 198 ("A widow shall be endowed of the third part of all the lands whereof her husband was seized of an estate of inheritance, at any time during the marriage, unless the same shall have been relinquished in legal form"); digital images, Internet Archive (https://archive.org/details/revisedstatuteso00illi : accessed 4 August 2026). Dower ran back through the territorial period: "An Act For the speedy assignment of Dower," passed 17 September 1807, in Pope, Pope's Digest, 1815, 1:119–21; and the Northwest Ordinance saved to a widow "her third part of the real estate for life." ↩
33. Revised Statutes of 1845, ch. 24, § 21, pp. 107–08 (the officer to acquaint her with the contents, examine her separate and apart from her husband, and certify that she relinquished her dower voluntarily, freely, and without his compulsion); and see ch. 24, § 15. The same separate examination appears in the earlier compilation, in "An Act concerning conveyances of Real Property," The Revised Laws of Illinois (1833), §§ 12–14, pp. 133–35. ↩
34. Revised Statutes of 1845, ch. 24, § 17, pp. 106–07. ↩
35. Women's Bureau, Report for Illinois (1948), 4, § 5, citing Ill. Rev. Stat. ch. 68, § 9 (which removed the need for the husband's joinder in his wife's conveyance of her own land, putting her, in the report's phrase, on a perfect equality with him so far as conveying her lands was concerned) and ch. 41, § 1 (his signature still necessary to release his dower); and Bruce v. McCormick, 396 Ill. 428 (1947). ↩ ↩
36. Curtesy came to Illinois with the common law received by the act of 1819 (see the first note above) and was never defined by an Illinois statute, which is why no statutory citation can be given for it. It was abolished, and dower made reciprocal, by "An Act to revise the law in relation to dower," approved 4 March 1874, in force 1 July 1874, § 1; printed in Revised Statutes of 1893, ch. 41, § 1, with its derivation from Revised Statutes of 1845, p. 198, § 1. ↩
37. Senate Bill No. 228, filed 25 July 1939 without the Governor's signature, "An Act to add Section 14a to 'An Act in regard to judgments and decrees, and the manner of enforcing the same by execution, and to provide for the redemption of real estate sold under execution or decree,' approved March 22, 1872, as amended," Laws of 1939, 690–91, § 14a (the officer making the sale to pay the debtor's spouse a sum equal to the value of the dower, computed as if the debtor had died on the date of sale and the spouse had elected to take dower in cash on recognized mortality tables). ↩
38. "An Act to exempt homesteads from sale on execution," in force 4 July 1851, in General Laws of the State of Illinois, Passed by the Seventeenth General Assembly (Springfield: Lanphier & Walker, Printers, 1851), 25, § 1; digital images, Internet Archive (https://archive.org/details/lawsofstateofillin17illi : accessed 4 August 2026). ↩
39. Act of 1851, § 1 (no release or waiver valid unless in writing, subscribed by the householder and acknowledged in the same manner as conveyances of real estate). ↩
40. Women's Bureau, Report for Illinois (1948), 3–4, § 3, citing Ill. Rev. Stat. ch. 52, §§ 1–2 (the homestead estate and its continuance after the householder's death), and ch. 30, § 26 (the homestead right may not be released except by an express waiver in a deed or other instrument, and no release by the husband is valid unless the wife also signs it). ↩
41. Revised Statutes of 1845, ch. 109, §§ 134–35, p. 564 (real estate may be mortgaged or leased by executors or guardians, for no longer a term than until the heir attains 21 if a male or 18 if a female, and only on petition to and order of the court of probate). The territorial law was to the same effect: a guardian could sell a minor's estate only in defined circumstances and by order of the court, Pope, Pope's Digest, 1815, 1:214–15. ↩
42. Revised Statutes of 1845, ch. 24, § 16 (before whom a conveyance may be acknowledged), § 18 (deeds acknowledged or proved in proper form entitled to record), and § 20 (proof of a deed by a subscribing witness), pp. 106–07. Neither this chapter nor its predecessor, "An Act concerning conveyances of Real Property," The Revised Laws of Illinois (1833), 129–38, sets any age for a witness to a deed. ↩ ↩
43. Revised Statutes of 1845, ch. 74, §§ 1–5, p. 387; tracing to the Black Laws of 1819 and 1829, and behind them to the territorial registration requirement, Pope, Pope's Digest, 1815, 2:474–76. The exclusion was extended by "An act to prevent the immigration of free negroes into this state," approved and in force 12 February 1853, in General Laws of the State of Illinois, Passed by the Eighteenth General Assembly (Springfield: Lanphier & Walker, Printers, 1853), 57–58, §§ 1, 3; digital images, Internet Archive (https://archive.org/details/lawsofstateofill1853illi : accessed 4 August 2026). The whole apparatus fell together, and the repealing act names each piece — ch. XXX, div. III, § 16 (criminal jurisprudence), all of ch. LXXIV (negroes and mulattoes), the act of 1853, and ch. XL, § 23 (evidence and depositions): "An Act to repeal section sixteen (16) of division III, chapter XXX of the Revised Statutes...commonly known as the 'Black Laws,'" approved and in force 7 February 1865, in Public Laws of the State of Illinois, Passed by the Twenty-Fourth General Assembly (Springfield: Baker & Phillips, Printers, 1865), 105, § 1; digital images, Internet Archive (https://archive.org/details/lawsofstateofillpub1865illi : accessed 4 August 2026). ↩
44. Revised Statutes of 1845, ch. 109, § 46, pp. 545–46. ↩
45. "An Act in regard to the descent of property," approved 9 April 1872, in force 1 July 1872, in Public Laws of the State of Illinois, Passed by the Twenty-Seventh General Assembly (Springfield: Illinois State Journal Print, 1872), 352, § 1, First; digital images, Internet Archive (https://archive.org/details/lawsofstateofill1871illi : accessed 4 August 2026). Printed also in Revised Statutes of 1893, ch. 39, § 1. ↩
46. Revised Statutes of 1893, ch. 39, § 4, from Revised Statutes of 1845, p. 563, § 128. ↩
47. Public Laws of 1871–72, 352, § 1, Third and Fourth (with no child or descendant, the surviving spouse takes one-half of the real estate and the whole of the personal estate as an absolute estate forever; with a child or descendants, the surviving spouse receives as absolute personal estate one-third of all the personal estate). For the earlier rule, Revised Statutes of 1845, ch. 109, § 46, pp. 545–46, gave a widow with no child one-half of the real estate and the whole of the personal estate as her exclusive estate forever, saving her dower in every case, and § 47, p. 546, gave a surviving husband one-half of the real estate of a wife who died without a child or descendants. ↩
48. Women's Bureau, Report for Illinois (1948), 7–8, § 15, citing Ill. Rev. Stat. ch. 3, §§ 162, 168–175 (where issue survive, the surviving spouse takes absolutely one-third of the personal estate and, as a substitute for dower, an absolute estate in one-third of each parcel of real estate owned at death in which dower is waived; where no descendant survives but a parent, brother, or sister does, one-half of the real estate and all the personal estate; where neither survives, the whole estate), and § 170 (dower in a third of all lands owned at any time during the marriage; there is no estate of curtesy). The Probate Act took effect 1 January 1940. ↩
49. Revised Statutes of 1845, ch. 109, § 48, p. 547 (the property set apart to her by the executor or administrator and not subject to the debts of the deceased). ↩
50. Revised Statutes of 1845, ch. 109, § 49, p. 547. ↩
51. Women's Bureau, Report for Illinois (1948), 8–9, § 16, citing Ill. Rev. Stat. ch. 3, § 330 (family pictures and the wearing apparel, jewels, and ornaments of the widow and the decedent's minor children; and money in an amount the appraisers deem reasonable for the support of the widow and those children for nine months after the death, not less than $500 together with a further sum of not more than $300 for each minor child of the decedent under 18), and § 333 (the widow may instead select personal property from the estate at its appraised value). ↩
52. Revised Statutes of 1845, ch. 47 ("Guardian and Ward"), §§ 1–2 (courts of probate to admit orphan minors above 14, the father being dead, to make choice of guardians, and to appoint for those under 14). ↩
53. For the parents' equal rights, Women's Bureau, Report for Illinois (1948), 11, § 25, citing Ill. Rev. Stat. ch. 3, § 284, and ch. 68, § 16 (a deserted wife entitled to custody unless the court directs otherwise). For the splitting of guardianship of the person from guardianship of the estate, which the 1948 edition does not reach, U.S. Department of Labor, Women's Bureau, The Legal Status of Women in the United States of America: Report for Illinois, as of January 1, 1960, Bulletin 157-12 (Revised) (Washington: Government Printing Office, 1960), 13–14, § 25, citing Ill. Rev. Stat. ch. 3, § 290; digital images, FRASER, Federal Reserve Bank of St. Louis (https://fraser.stlouisfed.org/files/docs/publications/women/b0157_12_dolwb_1960.pdf : accessed 4 August 2026). ↩ ↩
54. Revised Statutes of 1845, ch. 47, § 3 (where a minor having a father living is entitled to or possessed of any estate, real or personal, not derived from the father, the court of probate to notify the father and proceed to a guardianship of the estate). ↩
55. Revised Statutes of 1845, ch. 47, § 1; carried forward to Ill. Rev. Stat. ch. 3, §§ 287–88 — Women's Bureau, Report for Illinois (1960), 13–14, § 25, the 1948 edition not reaching the point. The territorial courts had the same power, though the age was left to the common law rather than fixed by statute: the courts of common pleas were "to admit orphans or minors ... to make choice of guardians, or tutors, and to appoint guardians ... over such as the said court shall judge too young, or incapable, according to the rules of the common law to make choice themselves," Pope, Pope's Digest, 1815, 1:199; digital images, Internet Archive (https://archive.org/details/popesdigest181528illi : accessed 9 August 2026). ↩
56. Revised Statutes of 1845, ch. 47, § 17 (every father of sound mind and memory may by deed or last will dispose of the custody and tuition of a child under 21 and unmarried; and every mother of sound mind and memory, being sole, may do the like); by 1948 either parent could designate a guardian of the person and of the estate by will, without depriving the surviving parent of custody — Women's Bureau, Report for Illinois (1948), 11, § 26, citing Ill. Rev. Stat. ch. 3, § 296. ↩
57. Revised Statutes of 1893, ch. 39, § 2 ("Illegitimates"), from Revised Statutes of 1845, p. 547, § 53, and the act of 1853; earlier at "An Act relative to Wills and Testaments," § 47, in The Revised Laws of Illinois (1833), 626 (a child deemed illegitimate not to be disinherited on that account, but to take and inherit the estate of the deceased mother), digital images, Internet Archive (https://archive.org/details/revisedlawsofill1833illi : accessed 8 August 2026); the reciprocal rule, that the mother inherits from such a child dying intestate without a surviving spouse or issue, taking half with the other half to her children and their descendants, is at Women's Bureau, Report for Illinois (1948), 11, § 29, citing Ill. Rev. Stat. ch. 3, § 163. ↩
58. Revised Statutes of 1893, ch. 39, § 3 ("Child legitimated"), from Revised Statutes of 1845, p. 547, § 62; earlier at "An Act relative to Wills and Testaments," § 46, in The Revised Laws of Illinois (1833), 626 (children legitimated by the later marriage of the parents and the father's acknowledgment, and capable in law to inherit and transmit inheritance as if born in wedlock). The rule ran unchanged through the period. ↩
59. "An Act to provide for the maintenance of Illegitimate Children," in force 1 July 1827, §§ 1–2, in The Revised Laws of Illinois (1833), 334–35; digital images, Internet Archive (https://archive.org/details/revisedlawsofill1833illi : accessed 8 August 2026). Carried forward as Revised Statutes of 1845, ch. 16 ("Bastardy"), and "An Act concerning bastardy," Public Laws of 1871–72, 198–99, §§ 1–2, and later as the paternity statute. Still in force at the end of the period — Women's Bureau, Report for Illinois (1948), 11, § 28, citing Ill. Rev. Stat. ch. 17, § 8. ↩
60. Revised Statutes of 1845, ch. 109, § 1, p. 536 (every person aged 21 if a male, or 18 if a female, and not married, being of sound mind and memory, may devise lands and personal estate by will; all persons of the age of 17, married women excepted, may dispose of their personal estate by will; and married women may dispose of their separate estate, real and personal, by will as other persons). The same three ages stood before that revision, in "An Act relative to Wills and Testaments, Executors and Administrators, and the Settlement of Estates," § 1, printed in The Revised Laws of Illinois (Vandalia: Printed by Greiner & Sherman, 1833), 611; digital images, Internet Archive (https://archive.org/details/revisedlawsofill1833illi : accessed 8 August 2026). ↩
61. Women's Bureau, Report for Illinois (1948), 7, § 14 (every person who is 18 years of age, if mentally competent, has power to dispose of real and personal property by will), citing Ill. Rev. Stat. ch. 3. The Probate Act took effect 1 January 1940. ↩
62. Revised Statutes of 1845, ch. 109, § 2, p. 536. ↩
63. Revised Statutes of 1845, ch. 109, § 9, p. 538. ↩
64. Revised Statutes of 1845, ch. 109, § 11, p. 539. ↩
65. Revised Statutes of 1845, ch. 109, § 23, p. 541 (persons of the age of seventeen years, of sound mind and memory, may be appointed executors; but where a person under 21 is appointed executor or executrix, the court of probate shall appoint some competent person to manage and control the estate, under the direction of the court and on bond, until the named executor attains 21), and § 29 (letters granted as if no executor had been named where the person named is under 17). ↩
66. Women's Bureau, Report for Illinois (1960), 3, § 2, citing Ill. Rev. Stat. ch. 3, §§ 229, 246; the 1948 edition does not address the age to serve as executrix. ↩
67. "An Act to provide for raising a Revenue," in The Revised Laws of Illinois (1833), 513–33, §§ 1–2, p. 513 (all lands claimed by individuals or bodies politic, except town lots and exempt lands, declared subject to taxation, divided into three classes by quality and taxed by the acre on value). The title sets no age threshold anywhere in its twenty-one pages. Digital images, Internet Archive (https://archive.org/details/revisedlawsofill1833illi : accessed 10 August 2026). Later general revenue acts are printed in the session volumes indexed by Western Illinois University Libraries and by The Advancing Genealogist, both listed under Sources below. No state income tax was levied within the period covered here; the retailers' occupation (sales) tax dates from 1933. ↩
68. Revised Statutes of 1845, ch. 93 ("Roads"), § 22, p. 485 (the county commissioners' court at its March term to fix and enter of record a number of days, not less than one nor exceeding five, that each able-bodied man between the ages of twenty-one and fifty years shall labor upon some public road within the county during the year), and § 23 (a road tax on taxable property in addition). The one-to-two-day figure comes not from the chapter but from an act of the same session printed in the volume's Appendix: "An Act to amend an act entitled an act concerning public roads, approved February 20th, 1841," Appendix, Act No. XXX, §§ 1–3, pp. 591–92. ↩
69. Revised Statutes of 1893, ch. 121 ("Roads and Bridges"), § 82 (under township organization, every able-bodied male inhabitant above 21 and under 50, excepting paupers, idiots, lunatics and such others as are exempt by law, to labor on the highways of his road district not less than one nor more than three days each year), and § 60, headed "List of poll tax for highway purposes" (not under township organization: at the meeting on the second Tuesday in March the commissioners to list the able-bodied men of the district between 21 and 50, deliver it to their treasurer by 1 April, and assess each not less than one dollar nor more than five as a poll tax for highway purposes, payable by the first Monday in June, with paupers, idiots and lunatics, ministers of the gospel in actual charge of a church or parish, and trustees of schools, school directors and other school officers exempt, the list not to include persons within cities or incorporated villages, and a poor person unable to pay but willing to labor permitted to work out the tax at one dollar per day). ↩ ↩
70. "An Act prescribing the mode of summoning Grand and Petit Jurors, and defining their qualifications and duties," in force 1 June 1827, § 1, in The Revised Laws of Illinois (1833), 378–79 ("all free white male taxable inhabitants in any of the counties in this state, being natural born citizens of the United States, or naturalized ... between the ages of twenty-one and sixty years ... being of sound mind and discretion, and not subject to any bodily infirmity, amounting to a disability"); digital images, Internet Archive (https://archive.org/details/revisedlawsofill1833illi : accessed 9 August 2026). For the territorial arrangement, under which the sheriff summoned the grand jury, see "A Law Concerning Grand Jurors adopted from the Kentucky Code," passed 3 March 1810, in Pope, Pope's Digest, 1815, 2:351–52. ↩
71. Revised Statutes of 1845, ch. 58 ("Jurors"), § 1, p. 308, carrying forward the act of 1827 in substantially the same words. ↩
72. Revised Statutes of 1893, ch. 78 ("Jurors"), §§ 1–2, from "An Act concerning jurors, and to repeal certain acts therein named," approved 11 February 1874, whose derivation runs to Public Laws of 1871–72, 516, §§ 1–2. ↩
73. Revised Statutes of 1893, ch. 78, §§ 2, 13 (the court may direct the sheriff to summon persons "having the qualifications of jurors" to fill an exhausted panel); no freehold appears among the qualifications in § 2, nor among those of the 1845 act or the act of 1827. ↩
74. The 1874 act replaced the taxpaying test with the electorate, and the word "white" does not appear in it: Revised Statutes of 1893, ch. 78, §§ 1–2. The state's own removal of racial restrictions on testimony and other civil disabilities had come with the repeal of the Black Laws on 7 February 1865 (see the note on the Black Laws above), and the Fifteenth Amendment was ratified in 1870. On the general course of the repeal see Roger D. Bridges, "The Illinois Black Codes," Illinois History Teacher 3, no. 2 (1996): 2–12. ↩
75. People ex rel. Fyfe v. Barnett, 319 Ill. 403 (1925), as summarized in People ex rel. Denny v. Traeger, 372 Ill. 11, 22 N.E.2d 679 (1939); and Sangamon County Historical Society, "First women jurors," SangamonLink, for the 1930 jury lists drawn under the referendum and its invalidation. ↩
76. Senate Bill No. 88, approved 12 May 1939, in Laws of the State of Illinois Enacted by the Sixty-First General Assembly (1939), 691, headed "Women on juries; authorized," amending § 1 of "An Act concerning Jurors, and to repeal certain acts therein named," approved 11 February 1874, as amended; and Senate Bill No. 89, approved 12 May 1939, ibid., 692, headed "Women on jury lists," amending § 2 of the jury commissioners act of 1887 (the commissioners to list all electors of each sex between 21 and 65 possessing the necessary legal qualifications for jury duty, each name entered in a book with the person's age, occupation, place of residence, and whether a householder residing with his family and whether a freeholder); digital images, HathiTrust (https://babel.hathitrust.org/cgi/pt?id=osu.32437122760909 : accessed 4 August 2026), the Ohio State University copy. By 1948 the rule was stated flatly: women were eligible for duty as trial or grand jurors under the same provisions of law that applied to men — Women's Bureau, Report for Illinois (1948), 12, § 32, citing Ill. Rev. Stat. ch. 78, §§ 1–33. ↩
77. People ex rel. Denny v. Traeger, 372 Ill. 11, 22 N.E.2d 679 (1939), decided 8 August 1939; the opinion dates both amendments to 1 July 1939. Women were serving by that September — Sangamon County Historical Society, "First women jurors." ↩
78. Revised Statutes of 1845, ch. 30 ("Criminal Jurisprudence"), §§ 3–4 (a person of sound mind and discretion includes one who has arrived at the age of fourteen years, or before that age if such person know the distinction between good and evil; an infant under the age of ten years shall not be found guilty of any crime or misdemeanor). ↩
79. "An Act to regulate the treatment and control of dependent, neglected and delinquent children," approved 21 April 1899, in Laws of the State of Illinois Enacted by the Forty-First General Assembly at the Regular Biennial Session (Springfield: Phillips Bros., State Printers, 1899), 131, §§ 1–4, 11; digital images, Internet Archive (https://archive.org/details/lawsofstateofill1899illi : accessed 4 August 2026). The act carries no separate in-force date and so took effect on 1 July 1899 under the general rule; the Cook County court first sat on 3 July. Now 705 ILCS 405/. ↩
80. No Illinois statute set a minimum age for a witness; competency was decided by the trial judge under the common law received in 1819. The evidence chapter states the general rule and its exceptions without reference to age: Revised Statutes of 1845, ch. 40 ("Evidence and Depositions"); and see Women's Bureau, Report for Illinois (1948), 7, § 13, on competency at the end of the period. ↩
81. Revised Statutes of 1845, ch. 40 ("Evidence and Depositions"), § 23. The section was repealed by name with the rest of the Black Laws on 7 February 1865 (see the note on the Black Laws above), which is why a person of color appears as a witness against a white party only from that year. ↩
82. Women's Bureau, Report for Illinois (1948), 7, § 13, citing Ill. Rev. Stat. ch. 51, § 5, and ch. 38, § 734. ↩

Note: This law guide was created with assistance from multiple AI tools. Though a diligent effort was made to ensure the accuracy of the information provided, there may be unintentional errors. It's important to check the primary sources as needed to ensure accuracy.