Waiving a decision of the constitutional question which has been raised, it is clear, that the judgment in this case cannot be sustained. The statute in reference to negroes and mulattoes, (Rev. Sts. ch. 74,) was mánifestly designed to discourage the settlement of negroes within this State. The eighth section of that act, inflicts a penalty upon any person bringing a black or mulatto person into the State, in order to free him from slavery. The fifth section provides for arresting, imprisoning, and hiring out any such person found in the State, not having a certificate of his freedom; and, although this section has been held to be invalid, in the case of Thornton, 11 Ill. 332, by reason of its conflict with the exclusive jurisdiction of Congress over the same subject, still it is proper to refer to it, as indicating the design of the legislature in the enactment of the other sections of the same law.
The first section declares, that “ no black or mulatto person shall be permitted to reside in this State, until such person shall produce to the County Commissioners’ Court, where he or ghe is desirous of settling, a certificate of his or her freedom, which certificate shall be duly authenticated in the same manner that is required to be done in cases arising under the acts and judicial proceedings of other States. And until such person shall have given bond, with sufficient security, to the people of this State, for the use of the proper comty, in the penal sum of one thousand dollars, conditioned that such person will not, at any time, become a charge to said county, or any other county of this State, as a poor person, and that such person shall, at all times, demean himself or herself in strict conformity with the laws of this State.”
It is under this first section that the bond sued on was given. It differs somewhat from the bond required by the statute, by omitting to state, that it was given for the use of (Massac) the proper county, also the words, “ as a poor person,” and is in some other respects variant from the law.
It is unnecessary to determine upon the effect of these variances, because, to have authorized the taking of even a statutory bond, Hobbs, the negro, must first have produced to the County Commissioners’ Court, the requisite certificate of his freedom. The legislature never intended this State to become a rendezvous for negroes and mulattoes of every description, who could give the required bond, but limited the privilege of residing here to such only as could furnish • evidence of their freedom, and then give bond and security not to become a charge to the county as a poor person, and for their good behavior. The clerk had no authority to take or approve the bond of a black person, who did not first furnish the evidence of his freedom, which the law required; and a bond given by a negro not furnishing this evidence, would not have authorized his residence in the State, or have afforded him, or the person bringing him here, any protection.
The first plea alleges, in substance, that Hobbs, at the time of the execution of the bond sued on, was a negro slave ; and second, that he was a negro slave, brought to this State by his mistress, and that he did not produce any certificate of his freedom, as required by the statute.
These pleas, if true, which the demurrer admits, show, that the bond was taken in a case not authorized by law. Upon such a bond no recovery can be had, and the court erred in sustaining the demurrer to these pleas.
The third plea is clearIy defective, and to it the demurrer was properly sustained.
Judgment of the Circuit Court reversed, and cause remanded.
Judgment reversed.