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state of Missouri; and it was excluded by the terms of annexation in 1845 from the territory claimed by Texas north of the same line. Now the question was whether it should be allowed to enter the vast area surrendered by Mexico at the end of the war; and, if so, to what extent.
In New Mexico and California, when the conquest took place, slavery was forbidden by law. Those provinces had not, like Texas, been exempted from the operation of Guerrero's decree of September 15, 1829, abolishing slavery throughout the republic of Mexico,1 and in them, therefore, the institution had no legal existence. The promulgation of this decree was by no means in harmony with republican methods, and it seems to have received little attention;2 but a decree of April 5, 1837, provided that slavery in Mexico should be abolished without exception and with compensation to the owners.3 As a matter of fact, however, there were practically no negroes anywhere in Mexico, and chattel slavery had little chance in the economic contest with the Mexican system of peonage. So far, therefore, as negro slavery was concerned, New Mexico and California were, at the time when they were occupied by the United States troops, both legally and actually free soil.
The effect of the conquest on the status of the government, and especially of slavery, in the territory occupied was by no means clear. As soon as the occupation took place temporary governments were organized by direction of the president, who claimed to be acting under authority, not of the Constitution, but of the power conferred by the law of nations on a conqueror.1 Nevertheless, in a message of December 22, 1846, in response to a resolution of inquiry from the House, he disavowed the acts of General Kearny in setting up a government for New Mexico, so far as they looked towards the establishment of a permanent territorial organization.2 While, however, the executive could not establish permanent governments for the conquered territory, Congress could; and Polk vainly recommended in his message of December 6, 1847, that it should do so without waiting for the treaty. When the treaty was concluded, the effect of it, as the president interpreted it, was to extend the Constitution and laws of the United States over California and New Mexico, so that the local organization set up by executive authority became simply a de facto government, which was allowed to stand till Congress should provide otherwise, because there seemed to be no more reasonable or safer alternative.3 The question as to the status of slavery in the
1 See p. 37, above. 'Bancroft, Mexico, V., 80
3 Dublin y Lozano, Legislation Mexicana, III., 353.
1 Richardson, Messages and Papers, IV., 494.
1 Ibid., 506; Polk, MS. Diary, December 19, 1846.
* Richardson, Messages and Papers, IV., 638.
territory acquired by the treaty was still more complicated. Calhoun claimed that Congress had no right nor constitutional power to discriminate between the states by passing a law which would "directly, or by its effects, deprive the citizens of any of the states of this Union from emigrating, with their property, into any of the territories of the United States." * On the other hand, it was contended that by Mexican law, valid so far as not in conflict with the Constitution and laws of the United States, slavery was already abolished in New Mexico and California.2 Unless, therefore, the Constitution operated of itself to secure the right of property in slaves in the acquired territory, slavery could not exist there except by an act of Congress. The right to hold slaves had, however, been founded by judicial decisions primarily on state or local law and custom rather than the Constitution or federal statutes.3
As soon as the progress of the war brought in sight the possibility of new territorial acquisitions in the southwest, the question as to the legal status and prospective existence of slavery therein arose at once. Many political leaders in the free states desired first to make certain that slavery would be permanently excluded from the territory, if acquired, and then leave the struggle over the acquisition to result as it might. Many in the slave states, on the other hand, while favoring the acquisition, contended that neither North nor South could rightly claim as an exclusive field for its industrial and social organization the ground that had been won by a common expenditure of money and of blood.1
1 Cong. Globe, 29 Cong., 2 Sess., 455. 1 Ibid., 31 Cong., 1 Sess., 342.
• Walker (Miss.), 85; Martin (La.), N. S., 402; 2 Marshall (Ky.), 470; 16 Peters, 611.
Several different solutions were offered for the problem concerning the expansion of slavery that was thus taking shape. One consisted in the Wilmot Proviso, but its impracticability had been clearly demonstrated before New Mexico and California were acquired. Another proposed the old expedient of geographical division,. employed in 1820, in the days before the abolition movement, when nationalization had not gone so far, and also applied in the annexation of Texas. If such a settlement could prevail at all, it would involve the extension to the Pacific of the line of 3 6° 30', dividing free soil from that where slavery might exist; and the result would be to separate the new acquisitions into two unequal parts, from the larger of which slavery should be excluded. Since the South had obtained so small a share of the Louisiana purchase, it seemed to be extremely moderate for her to content herself with a like meagre allotment in the southwest; nevertheless, many southerners wished to extend the compromise line, and among them was the president himself, who had the unanimous concurrence of his cabinet.1
lCong. Globe, 29 Cong., 2 Sess., 453, App., 90, 160, 367.
Polk, however, favored such a compromise mainly in order to quiet the agitation of the subject. He told Senator Crittenden that "the question of slavery would probably never be a practical one if we acquired New Mexico and California, because there would be but a narrow ribbon of territory south of the Missouri Compromise line of 360 30', and in it slavery would probably never exist." a It should be remembered that in the successive compromises based on the principle of division of territory the slave - holding interests had agreed that slavery should be excluded from states formed north of the line of 360 30' — except Missouri — if only those formed below it should be given their option as to whether they would have slaves or not; it was therefore theoretically possible for free states to be formed below the compromise line.
Another suggestion was that Congress should provide for the organization of territorial governments for New Mexico and California, but should prohibit the legislatures of those territories from passing any law on the subject of slavery, and should leave the questions connected with it to be decided by the territorial judiciary. Calhoun would have preferred that the decision should be without appeal to the supreme court of the United States, but was
1 Polk, MS. Diary, January 16, 1847. 'Ibid., January 23, 1847.