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Trout Fishing in Sullivan County, New York. By: Henry Inman.

In the 15 years leading up to the Civil War, a wide variety of theories emerged for how the federal government should deal with slavery expanding, or not expanding, into the territories acquired by the United States.

This national debate erupted as a result of the Mexican-American War. Following the war, America acquired vast territory in the West, where the issue of slavery would have to be hashed out for the first time in decades.

Leading up to the 1840s, it was commonly thought that slavery was a state problem, not federal. See David Potter, The Impending Crisis: America Before the Civil War, 1848-1861, 52. The issue of slavery seldom came to the attention of the federal government, and when it did, it was tangential to the expansion of slavery throughout the country, instead focusing on “slavery in the District of Columbia, suppression of the international slave trade, and rendition of fugitive slaves.” Id. citing Russel B. Nye, Fettered Freedom: Civil Liberties and the Slavery Controversy, 1830-1860 (East Lansing, Mich., 1949); William R. Leslie, “The Fugitive Slave Clause, 1787-1842” (Ph.D. dissertation, Univ. of Mich., 1945); W. E. Burghardt DuBois, The Suppression of the African Slave Trade to the United States of America, 1638-1870 (New York, 1896).

The federal government had not been deeply involved in the slavery question since the Missouri Controversy in 1820, when Missouri applied for admission into the Union as a slave state and inadvertently raised the question of whether slavery should be legal in all the territory acquired in the Louisiana Purchase. The conclusion of the Mexican-American War presented the country with new territory and renewed the question of whether slavery should be permitted in that territory. See David Potter, The Impending Crisis: America Before the Civil War, 1848-1861, 53. With the renewal of that argument, sectional tension erupted. The federal government, and particularly Congress, needed to have a position as to whether to expand slavery, and if so, how. From 1846 to 1861, “countless speeches, resolutions, editorials, and party platforms set forth a wide variety of proposals for resolving the territorial issue.” Id. at 54.

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Troops Leaving Fort Mason, Texas. By: Melvin Warren.

Four basic schools of thought emerged during this time period on how to deal with the issue of slavery, each led by prominent politicians: (1) David Wilmot, (2) James Buchanan, (3) Lewis Cass, and (4) John Calhoun.

First, David Wilmot, a Congressman from Pennsylvania, believed that “Congress possessed power to regulate slavery in the territories and should use it for the total exclusion of the institution.” Id. The basis for this belief was rooted in the beginning of the Republic, with the Northwest Ordinance of 1787, which stated: “There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted.” Clarence Edwin Carter (ed.), The Territorial Papers of the United States (Washington, 1934-), II, 49. This provision was enforced in Indiana, Michigan, Illinois, and Wisconsin as those territories came to be acquired, which meant that Presidents George Washington, John Adams, Thomas Jefferson, James Monroe, and Andrew Jackson each implicitly enforced the thrust of the Wilmot Proviso. See David Potter, The Impending Crisis: America Before the Civil War, 1848-1861, 54.

The Wilmot Proviso was undercut by a group of individuals who believed that Congress had the right to exercise, or not exercise, its power in this sphere such that northern territories could rid themselves of slavery while southern territories were free to embrace slavery. States like North Carolina and Georgia had entered the Union with a condition that “no regulation made or to be made, by Congress, shall tend to emancipate slaves.” Id. at 55 quoting Carter (ed.), Territorial Papers, IV, 7, 13 (North Carolina); V, 145 (Georgia). Nonetheless, the Wilmot Proviso became one of the most oft-discussed of the four schools of thought.

Second, the idea emerged that a geographical boundary should be set for slave states and non-slave states. Congressman William W. Wick of Indiana proposed to extend the 36° 30′ parallel north “into the prospective Mexican cession,” such that north of that line slavery was prohibited and south of that line it was permitted. David Potter, The Impending Crisis: America Before the Civil War, 1848-1861, 55-56. Congressman Wick proposed this solution in 1846, and from then to 1850, it began to garner significant support. See id. at 56. President James Polk embraced it, and in the Election of 1848, candidate James Buchanan made it “his primary issue,” while Stephen Douglas became a strong proponent of the proposal in the Senate. See id. As a solution, this lent clarity and simplicity to a complicated issue. For those in the North who were more in line with the Wilmot Proviso line of thinking, it was problematic as an approach because it only served to reinforce and deepen the division of the country between North and South, not move the country toward reconciliation. Support for this proposal would come mainly in the South, where perpetuating slavery was the goal, even if much of the newly acquired territory would not be used for agricultural slavery as was the case throughout the South.

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Photograph of Lewis Cass. By: Mathew Brady.

Third, Lewis Cass of Michigan wrote in his “Nicholson letter” in December 1847 that even if Congress did have the power to regulate slavery in the territories, the regulation of slavery should be left to the territorial governments. See id. at 57 citing Cass to Nicholson, Dec. 24, 1847, in Washington Union, Dec. 30, 1847. The reasoning underlying this proposal was that the occupants of those territories were just as capable of self-governing as the citizens of states. As such, they should be enabled “to regulate their own internal concerns in their own way.” Cass to Nicholson, Dec. 24, 1847, in Washington Union, Dec. 30, 1847. Cass wrote that he did “not see in the Constitution any grant of the requisite power [to regulate slavery] to Congress,” characterizing the exercise of such power “despotic” and of “doubtful and invidious authority.” Id.

Cass’ approach, while appealing to many, was ambiguous. It raises the question of when a territorial government is sufficiently organized so as to make such independent policy decisions like regulating slavery. For example, must a territory create such policy immediately following its formation? Or is it later, when the territory is seeking admission to statehood? Despite the ambiguity, the notion of popular sovereignty underlying Cass’ proposal struck a chord with many Americans, who fundamentally agreed that self-government must be treasured.

Fourth, and finally, the approach that John Calhoun and his disciples proposed reasoned that “Congress did not possess constitutional power to regulate slavery in the territories and, therefore, that slavery could not be excluded from a territory prior to admission to statehood.” David Potter, The Impending Crisis: America Before the Civil War, 1848-1861, 59. From a legal perspective, Calhoun argued that the states jointly owned the territories and discriminating amongst the citizens of states as to rights within the territories would be unconstitutional. See id. at 60 citing Congressional Globe, 29 Cong., 2 sess., p. 455. There was no legal support to speak of for this theory. Calhoun’s approach was never put to a vote, and even if it had been, it likely would not have enjoyed sufficient support to pass. However, his approach would be captured and judicially approved in a controversial United States Supreme Court decision: Dred Scott v. Sandford, 60 U.S. 393 (1857).

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Fort Laramie, Texas. By: Alfred Jacob Miller.

These four schools of thought, while touted as solving the slavery problem and alleviating sectional tension, were solely limited to the proxy issue of dealing with slavery in new territories. While the proponents of each approach may have legitimately believed that they had the best interests of the country in mind, no approach contemplated dealing with slavery within the states. This illustrates the extent of entrenchment of sectionalism at the close of the 1840s and how that division would only deepen throughout the 1850s. Each side would give up nothing when it came to the regulation of slavery within the states, but both sides fervently believed that if they could somehow make a gain on the issue of slavery within the territories, this would translate into broader success for their side of the argument.

From a pragmatic standpoint, the federal government had the unenviable and unprecedented task of reconciling the various states’ views on the issue of slavery within the territories. Seldom in history has the American population been so deeply divided as to hamstring the governmental institutions designed to reflect popular will from addressing the issue. Incremental progress became impossible. These four theories of slavery in the territories would carry on in political discourse until the outbreak of the Civil War, where finally, Americans would be confronted with dealing with slavery in the states.

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