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SLAVERY IN THE TERRITORIES

Slavery was confirmed by statute or royal decree in all the English, Spanish, and French colonies of North America. After American Independence, slavery therefore enjoyed a legal existence in all the states. In the northwest ordinance of 1787, the Confederation Congress prohibited slavery in the Northwest Territory, although it also provided for the recapture of slaves escaping there. The First Congress reenacted this ban, but in legislation for the area southwest of the Ohio River it omitted the exclusion of slavery, so that slavery was free to penetrate into the territories ceded by Virginia, New York, North Carolina, South Carolina, and Georgia. Slavery also existed in the French settlements that were to become Louisiana, Missouri, Illinois, and Indiana. The treaty of cession with France (1803), by which the United States acquired the louisiana purchase, guaranteed extant property rights, thus assuring slavery's perpetuation in those territories.

Despite the ban of the Northwest Ordinance, settlers in Ohio (particularly in the Virginia Military Reserve in the southwest quadrant of the territory), Indiana, and Illinois tried to introduce slavery, with the connivance of Indiana territorial governor William Henry Harrison in the case of Ohio, and at least the tacit consent of President thomas jefferson. They failed in Ohio and Indiana, but in Illinois slavery continued in subterfuge forms in the lead mines of Galena and the salt mines of Shawneetown, and only a vigorous abolitionist effort prevented its legalization throughout the state in 1822.

The Constitution contained no direct allusion to slavery in the territories; the new states and territories clauses did not refer to it, although the fugitive slave clause permitted recapture of fugitives only from the states, not the territories. Consequently, when Missouri sought admission as a slave state in 1819, Congress had no textual guidance, and for the first time it had to extrapolate from what it could determine of the Framers' intent concerning the territories. The result was a long and bitter debate in which restrictionists argued that slavery was hostile to the spirit of republican government and should not be extended to the new lands, while slavery's supporters insisted that Congress lacked power to exclude slavery from any territory. Jefferson at the time joined the antirestrictionists, arguing that as slavery spread it would diffuse to the point where the black population, relative to the white, would dwindle in both the old states and the new territories. The Missouri controversy was settled by admitting Missouri as a slave state and Maine as a free state, while prohibiting slavery in all the Louisiana Purchase territory north of Missouri's southern boundary (3630). (See missouri compromise.) Jefferson likened the Missouri debates to a "firebell in the night," the "knell of the union."

As the confrontation over slavery intensified in the 1830s, abolitionists and defenders of slavery amplified their constitutional and policy arguments about slavery's future in the territories. Abolitionists found two sources of congressional power to exclude slavery. They saw the territories clause (Article IV, section 3) as a plenary grant of power to the national government to regulate all matters of property and personal status in the territories. Further, the new states clause (Article IV, section 3) implicitly permitted restriction because it gave Congress power to prohibit a state's admission if it recognized slavery. Abolitionists also maintained that slavery was contrary to the principles of a republican form of government, which the United States must guarantee to each of the states.

Alarmed by such doctrines, john c. calhoun in the period 1837–1847 elaborated doctrines that denied any exclusionary power to Congress. He insisted that the territories were the common property of all the states, and that it would be unjust to the slave states to exclude one form of property and its owners (slaves) when all other forms of property were not similarly restricted. Calhoun regarded Congress as the agent of the states (they being the principals) or as their trustee (they being the beneficiaries). By either legal metaphor, Congress lacked power to exclude slavery because that would discriminate against one group of states. He maintained that slavery was not only a positive good but also an essential element in the domestic and political structure of the slave states. Efforts to impede its spread were therefore not only insulting but threatening to the security of the states themselves.

This debate remained academic until 1845. Arkansas had been admitted as a slave state in 1836, the unorganized Indian Territory (modern Oklahoma) was not then targeted for white settlement, and many still considered the remainder of the Louisiana Purchase uninhabitable. But Texas's independence, followed by its request for admission, thrust the territorial debates to center stage, and for over a decade after the outbreak of the Mexican War the territorial issue eclipsed all other topics of the slavery controversy except the problem of fugitive slaves. Texas, a slaveholding Republic that had struck for Independence partly because the Mexican constitution had abolished slavery, presented the potential for more than one slave state; the joint resolution admitting it to statehood recognized its potential subdivision into five states.

When war with Mexico broke out in 1846, the future of the territories to be acquired from that country became a more urgent issue. A few persons suggested that the United States acquire no new territories, but that idea was lost in the tide of Manifest Destiny flooding the country in the 1840s. In 1846, Representative David Wilmot, a Pennsylvania Democrat, offered a proviso to an appropriations bill that used the language of the Northwest Ordinance to exclude slavery from all territories acquired as a result of the Mexican War. Democrats and other defenders of slavery were alarmed by the wilmot proviso's popularity in the North (nearly all free state legislatures endorsed it), and especially by the Proviso's appeal to Northern Democrats, who resented Southern dictation of party policy on slavery-related subjects and wanted to preserve the new territories for free white settlement.

The Proviso's opponents introduced four alternative proposals. Many Southerners at first found the idea of extending the Missouri Compromise line attractive. The Polk administration, Justice john catron of Tennessee, the nashville convention of 1850, and Senator john j. crittenden of Kentucky in 1860 all suggested extrapolating the 3630 line as a simple and arbitrary solution to the Gordian knot of slavery in the territories. Despite its simplicity, the idea repeatedly failed. One of the reasons for its failure was that other Southern leaders, more determined to protect the South than to compromise the territorial issue, revised their 1820 position and insisted that any exclusion of slavery from the territories was unconstitutional. Their theories for a time were subsumed under the shorthand term "non-intervention," a name for a cluster of doctrines that adopted Calhoun's premises and went on to demand that the federal government protect slavery in all the territories and even establish it there by a federal territorial slave code if necessary.

Northern Democrats rejected this position, but they did not want to split the party by endorsing the Wilmot Proviso. Under the leadership of Lewis Cass of Michigan and stephen a. douglas of Illinois, they proposed a third alternative: the doctrine of territorial sovereignty, more often but less accurately referred to as popular sovereignty or squatter sovereignty. Cass and Douglas insisted that the future of slavery in the territories be decided by the settlers of the territories themselves, not by Congress. After 1850, they also began to adopt the Southern position that slavery's exclusion was not only unnecessary and gratuitously offensive to the South but also unconstitutional. Territorial sovereignty contained a central ambiguity: when were the settlers to decide? If, as Southern spokesmen demanded, territorial settlers could not exercise this prerogative until the eve of statehood, then slavery would establish a foothold, as it had in Missouri, and be impossible to dislodge. Northern proponents of territorial sovereignty, on the other hand, insisted that the settlers had a right to exclude slavery at any point after the organization of the territory. This view, in turn, forced Southerners to another doctrinal redoubt, when they claimed that just as Congress could not exclude slavery, neither could its creature, the territorial legislature. In this view, slavery could establish itself anywhere in American territories.

The Free Soil coalition of 1848, made up of New York Democrats, antislavery Whigs, and former political abolitionists, adopted the Wilmot Proviso as a principal plank in their program. But the compromise of 1850 decisively rejected the Wilmot Proviso. In admitting California as a free state and organizing New Mexico and Utah Territories without restrictions as to slavery, Congress also rejected the Missouri Compromise line. But it also adopted the fourth alternative to the Wilmot Proviso, the "Clayton Compromise." Senator John Clayton of Delaware had proposed that all questions arising in territorial courts concerning title to slaves or a black's claim to freedom be appealable directly to the United States Supreme Court, in effect inviting the Justices of the high court to try their hand at resolving the seemingly insoluble territorial issue. By adopting the Clayton Compromise, Congress admitted its inability to deal with the most exigent political issue of the day. Its desperate grasp at nonpolitical solutions not only confessed its impotence but also assumed the finality of an unpredictable resolution of a question that was ultimately metajudicial.

The kansas-nebraska act of 1854 adopted the principle of territorial sovereignty, along with some vague and ambiguous allusions to nonintervention. It declared the Missouri Compromise defunct and implied that it was unconstitutional, thus representing a victory for both northern Democrats and Southerners. But this accommodation did not last long, as Kansas filled with authentic settlers and Missouri sojourners. Because most of the former hoped to see Kansas free and because all the latter were determined to make it a slave state, political controversy erupted into guerrilla warfare in the period known as "Bleeding Kansas." President james buchanan tried to force the proslavery lecompton constitution on the territory, over the wishes of a large majority of bona fide settlers, and thereby split the Democratic party into Southern-dominated and Douglas wings.

Meanwhile, Chief Justice roger b. taney and his colleagues took up the invitation tendered by Congress in dred scott v. sandford (1857). Taney held, in the latter part of his opinion, that the Missouri Compromise was unconstitutional, and that Congress could not exclude slavery from a territory. He adopted three Calhounite positions in obiter dicta : the federal government had to protect slavery in the territories; territorial legislatures could not exclude slavery at any time before statehood; and the federal government was the trustee of the states or the territories. In passing, Taney suggested that congressional exclusion would deprive a slaveowner of rights to property protected by the due process clause of the Fifth Amendment. This adumbration of substantive due process was merely a passing allusion, however, the emphasis of Taney's opinion lying instead in his interpretation of the new states clause.

In the lincoln-douglas debates of 1858, abraham lincoln challenged Douglas to explain what was left of territorial sovereignty after Dred Scott. Douglas suggested the freeport doctrine : that Congress could for all practical purposes exclude slavery from a territory simply by not enacting a territorial slave code or extending any other protection for it there. Under one interpretation of somerset v. stewart (1772), there being no positive law to keep a person enslaved, slavery effectively could not establish itself. This led Mississippi Senator jefferson davis to demand that the federal courts protect slavery in the territories somehow, and, if this proved unavailing, that Congress enact a territorial slave code.

The Constitution of the Confederate States of America extended full federal protection to slavery in any territories the Confederacy might acquire. The Congress of the United States abolished slavery in all federal territories in 1862 (Act of June 19, 1862).

William M. Wiecek
(1986)

(see also: Constitutional History, 1829–1848.)

Bibliography

Bestor, Arthur 1961 State Sovereignty and Slavery: A Reinterpretation of Proslavery Constitutional Doctrine, 1846–1860. Journal of the Illinois State Historical Society 54:117–180.

Quaife, Milo M. 1910 The Doctrine of Non-Intervention with Slavery in the Territories. Chicago: Chamberlin.

Russel, Robert R. 1966 Constitutional Doctrines with Regard to Slavery in the Territories. Journal of Southern History 32: 466–486.

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Slavery in the Territories