Jefferson Davis, at the time a U.S. senator from Mississippi, likewise deflected the Northern argument with his own forceful invective. “Did we admit territory from Mexico subject to the constitution and laws of Mexico? Did we pay fifteen millions of dollars for jurisdiction over California and New Mexico, that it might be held subordinate to the law of Mexico?” the senator asked rhetorically during a February 1850 speech.103 Davis recalled the negotiation process antecedent to the signing of the Treaty of Guadalupe Hidalgo, during which time a United States minister plenipotentiary, Nicholas Trist, discussed the slavery issue with Mexican commissioners. Trist purposely sidestepped the topic of slavery in the actual treaty to avoid setting a controversial precedent, informing his ambassadorial counterparts that “the bare mention of [slavery] in any treaty … was an absolute impossibility.” He understood that any provision either including or excluding slavery in the ceded territory could not be considered without inciting political turmoil in the halls of Congress. Trist only slightly exaggerated the gravity of the situation when he told Mexican diplomats that “if it were in their power to offer me the whole territory described in our project, increased tenfold in value [and] covered a foot thick over with pure gold, upon the single condition that slavery be excluded therefrom, I could not entertain the offer for a moment, nor think even of communicating it to Washington.”104
Figure 5. John C. Calhoun, proslavery South Carolina senator. Courtesy National Archives and Records Administration, Washington, D.C.
Davis alluded to this intentional omission of Mexico’s slave laws as evidence that such mandates could not remain in effect after the treaty had been signed. He quoted the constitutional recognition of slave property as validation for the Southern cause, noting that the founding document ensured all American citizens the same legal protections regardless of sectional affiliation. Mexico’s abolition of slavery during the 1820s, he insisted, became irrelevant the moment that it ceded New Mexico and California to the United States, whereupon that entire region came under “a sovereignty to be measured by our Constitution, not by the policy of Mexico.”105
The most comprehensive analysis of preexisting Mexican laws and their impact on the extension of slavery into New Mexico came from Judge Kirby Benedict. Explaining his ruling in an 1857 peonage case, Benedict expounded upon previous Spanish and Mexican slavery statutes, analyzing the intended effects of those laws and addressing many of the same unresolved issues that congressmen had raised several years earlier. Benedict began by acknowledging the longtime existence of debt peonage in New Mexico. Comparisons first had to be drawn between the common perceptions (and misperceptions) of peonage versus slavery as institutions of involuntary servitude. Identifying them as essentially one and the same system in principle, Benedict opined that slavery “ceased to exist” during the Spanish colonial era, citing an act of Spain on August 6, 1811, as the official moratorium. Spanish law thereafter prohibited any person from selling another’s liberty or engaging in any other act that might be perceived as human trafficking. In Benedict’s estimation, all forms of involuntary servitude had been banned in New Mexico by decree of its mother country in 1811.106
After gaining independence in 1821, Mexico’s lawmakers passed their own edicts defining and regulating slavery, all of which reinforced previous Spanish law and included additional sanctions for violations. According to Benedict, such legislation demonstrated “the Mexican spirit” on the topic of slavery and would be the guiding principle for his pending legal interpretation.107 Mexico’s 1829 decree defined master-servant relationships, acknowledged the existence of servitude, and placed numerous restrictions upon masters. Nobody in Mexico would ever again be born into slavery, and six months after the law’s inception “the introduction of slaves” would be forever prohibited.108 The law also forbade whipping and other forms of corporal punishment, with a provision allowing servants and slaves to sue an abusive master for “excessive chastisement.”109 This and other Mexican statutes applied equally to New Mexico and had effectively banned racial slavery—while specifically allowing peonage—many years prior to the 1846 U.S. conquest.
Having thus established the parameters of preexisting Spanish and Mexican laws relative to slavery in New Mexico, Benedict examined the territory’s midcentury transition in sovereignty. He cited the inception of the Kearny Code in September 1846 as the first instance of American law being implemented, noting that the document failed to address servitude and therefore left the institution intact by virtue of salutary neglect. Because the code lacked specific wording relative to masters and servants, Benedict reasoned that a patrón could only “recover his debt from his servant or peon, as in the ordinary way from another debtor.”110 Although this opinion highlighted the system of peonage more so than that of chattel slavery, it nonetheless defined both institutions as involuntary servitude. Benedict’s comments relative to Mexico’s peon regulations applied to all forms of coerced labor, and he reaffirmed that slavery had been outlawed multiple times through the mandates of both Spain and Mexico. Of all the commentary on Mexico’s slavery laws, however, a German-born doctor, Adolph Wislizenus, provided the most concise explanation. Describing the system of debt peonage that he encountered almost everywhere he went, Wislizenus wrote that “this actual slavery exists throughout Mexico, in spite of its liberal constitution; and, as long as this contradiction is not abolished, the declarations of the Mexican press against slavery in the United States must appear as hypocritical cant.”111
While remaining mostly ambivalent toward chattel slavery—viewing it through the tunnel vision of political expediency rather than economic practicality or moral standing—many inhabitants of New Mexico vehemently defended their right to retain captives and peons. Superintendent of Indian Affairs James S. Calhoun noticed in 1850 that the recent transformation in political sovereignty and nationality had little effect on New Mexicans when it came to their outlook on Indian slavery and debt bondage. “They yet think that the right to buy and sell captives is perfect, and that no human power can disturb that right,” he wrote, explaining that “trading in captives has been so long tolerated in this territory, that it has ceased to be regarded as wrong.”112 Although Calhoun referred to Indian servants, his allusion to exchanging human property extended to peons as well. Widespread confusion about the differences between Southern slavery and New Mexico’s traditional forms of bondage continued among federal lawmakers. As late as January 1861, with the first shots of the Civil War just weeks away, those in the East remained perplexed as to New Mexico’s stance on slavery. Congressional leaders could not discern the true sentiments of the people, having been bombarded with innumerable “contradictory and self-stultifying reports” from territorial residents.113
Even leading territorial officials did not quite understand the actual prevailing sentiment on slavery in the Southwest. Daniel Webster asked Hugh Smith to explain “what the fact is, at the present time, respecting the existence of slavery in New Mexico.”114 The response contradicted Governor Calhoun’s earlier claim that local residents retained slave labor. Smith assured Webster that New Mexico “is a free territory” and that he knew of no persons there “who are treated as slaves,” with the exception of a few black men accompanying military officers and other temporary residents. “The strongest feeling against slavery universally prevails throughout the whole territory,” he concluded in a rather simplistic analysis, carefully avoiding any mention of the peons and captives that his Hispano constituents held and, with political acumen,