Borderlands of Slavery. William S. Kiser

of New Mexico and Utah into the Union as either free or slave territories prompted numerous debates in Congress and exacerbated sectional turmoil between Northern and Southern lawmakers.⁹ Political leaders in both houses argued over whether or not slavery should be sanctioned in the Southwest, discussing the aptitude of the arid climate and mountainous topography for supporting involuntary servitude, the sentiments of the civilian inhabitants toward such an institution, and the validity of preexisting Mexican laws banning human bondage. In most of these exchanges, legislators failed to distinguish between slavery in the South, and captivity and peonage in the Southwest. One of the great peculiarities about debates on slavery in the Mexican Cession lands was that the topic of discussion—plantation-style chattel slavery—mattered very little to most of the recently naturalized Mexican Americans living there. Only a handful of U.S. politicians ever recognized this discrepancy and, when attempting to explain the true nature of regional systems of servitude to their peers, they often received laughter and jeers in response.¹⁰

      Congressional debates on the regulation of slavery in New Mexico began even before the signing of the Treaty of Guadalupe Hidalgo.¹¹ But when Mexico ceded California and New Mexico to the United States in 1848, the question of admitting those two provinces into the Union took on increased urgency. A year later it became evident that California would seek entry as a free-soil state, meaning that New Mexico must be admitted as either a slave state or territory in order to maintain sectional balance, a stipulation that traced its precedent to the Missouri Compromise.¹² In a speech delivered on June 27, 1848, South Carolina senator John C. Calhoun outlined one critical consideration involving whether or not the Northern states, through their congressional representatives, should have the power to block Southern migrants from relocating to the new territories with their slave property.¹³ While the Compromise of 1850 offered a temporary solution to the problem, the 1857 Supreme Court case Dred Scott v. John F. A. Sandford provided a more conclusive (and controversial) verdict on the future of slavery in the territories.¹⁴ The arguments undergirding the 1857 decision help to explain the eccentricities of the political debates over slavery in New Mexico that occurred between 1848 and 1850, and they provide a broader contextual framework in which to view and interpret southwestern slave systems.

      One of the primary dilemmas addressed in the Dred Scott case involved the transport of slaves into U.S. territories. Senator John M. Berrien of Georgia, a former attorney general in Andrew Jackson’s administration, posed that question to Congress as early as 1850. “If the Constitution of the country recognizes my title to the slave within my State, beyond my State, and within a sovereign State that inhibits slavery, does it forbid, does it deny that title within a territory that is the common property of the United States?” he asked rhetorically.¹⁵ The senator was referring to an American legal principle known as the “right of transit,” wherein the constitutionally protected property rights of slaveholders enabled them to bring bondsmen into states that had abolished slavery, although by the 1850s most Northern states had stopped recognizing this purported right.¹⁶ Berrien’s inquiry and others regarding slavery in the territories would be answered in the Supreme Court’s 1857 ruling.

      Some scholars have criticized the Dred Scott case—a landmark victory for proslavery ideologues and a stunning defeat for the free-soil movement—as a failure of American jurisprudence and one of the earliest examples of overt judicial activism on the part of the U.S. Supreme Court.¹⁷ In a vote that transcended sectional lines, six of nine Supreme Court judges sided with Chief Justice Roger B. Taney in the opinion that Congress had no power to regulate slavery in the territories, nor did it have the ability to prohibit citizens from transporting their slave property into such regions.¹⁸ The constitutional interpretations and legal theories sustaining the Supreme Court decision could be traced back to the Northwest Ordinance.¹⁹ The Dred Scott case cemented lingering ambiguities on territorial jurisdiction to the benefit of proslavery interests, although its failure to address involuntary servitude more broadly left plenty of latitude for New Mexicans to interpret the ruling loosely in regards to captivity and peonage.

      Through Dred Scott, the Supreme Court answered many of the questions that had arisen in Congress surrounding the admission of new states and territories in the Mexican Cession lands. Following the Mexican-American War, political leaders spent more than two years sparring over the regulation of slavery in the Southwest and debating whether or not territorial legislatures could legally sanction systems of involuntary servitude. If Congress admitted New Mexico and Utah without a clause protecting the peculiar institution, Southerners feared that, however economically and agriculturally impractical the implementation of plantation slavery in those regions might be, slaveholders who relocated there might be forced to surrender their human property upon arrival.

      Most congressmen acknowledged the vast differences between state and territorial governments and, by extension, their capacity as federal lawmakers to legislate over them. Long before the Dred Scott case, Representative David Wilmot described states as independent and highly organized political entities while explaining that territories, on the other hand, “are unorganized, dependent communities, destitute of sovereignty, looking to us for political existence.”²⁰ As quasi-colonial bodies, territories existed at the behest of the federal government; most high-ranking officials received their appointments from Washington bureaucrats, including governors, whom the president appointed directly. This placed territories in a subordinate political position, denigrating their inhabitants as veritable wards of the government and allowing for a higher degree of federal oversight.

      Because each territory had only a single congressional representative who could do little more than give speeches when allowed the opportunity, the addition of a new territory did not disrupt sectional political balance to the same degree as did the admission of new states with multiple congressmen and full voting powers. With California receiving free-soil statehood status in 1850, Southerners were perturbed that two popular sovereignty territories (New Mexico and Utah) did not adequately compensate for the disruption of political representation in Congress. Senator Calhoun despaired the outcome of debates on California’s admission as a free-soil state and spoke vehemently against it, recognizing that no solution was likely to preserve national unity forever. From the moment the Northwest Ordinance became law in 1787, he lamented, the South had been “deprived of its due share of the territories,” the result being the destruction of “the equilibrium which existed when the government commenced.” Calhoun interpreted sectional inequity in terms of political power and population—both of which influenced the allotment of congressional seats and had been the basis of earlier compromises—to assert the importance of balanced representation between the North and South. The growing population imbalance between the two sections, which the 1840 census placed at a difference of 2.4 million people, meant that power in the House had shifted significantly in favor of the North. Calhoun pointed out that Northern states had forty-eight more seats in the House than did Southern states, a gap that would only widen with time. The admission of new slave territories would do nothing to mitigate this discrepancy because their representatives did not have voting powers and, even if they did, the population of western territories remained negligible compared to that of states in the East.²¹

      Calhoun’s points about political representation in Congress and the limited power of territorial governments precipitated widespread anxiety over new territories. Those tensions arose in part from the unforeseen ramifications that sometimes attended the admission of these geographically immense regions, where populations often became divided over the slavery issue. When the Northwest Territory was broken up into multiple smaller states, for example, the settlers in southern Illinois and Indiana related more to neighboring slave regions like Kentucky and Missouri, than they did with northerly Wisconsin and Michigan residents. This meant that territories might become internally divided and seek admission as multiple states with either pro-or antislavery constitutions. The same held true for New Mexico, a vast region that, prior to the creation of Arizona Territory in 1863, stretched from Texas to California and covered some 250,000 square miles. Because it encompassed such a large area and included diverse groups of people, New Mexico was susceptible to ideological divergences on the slavery issue among its widely dispersed and ethnically diverse population. This prevailing uncertainty frightened political leaders in the North and South alike and militated against the admission of new