Prologue

THE NINE-MONTH DEBATE AND THE CRISIS OF 1850

The debate over the Compromise of 1850 began in 1846. In that year, the United States invaded Mexico and the country immediately had to confront the question of whose system of labor would be allowed to exist in the territories acquired as a result of the war. When President James Polk asked Congress in August 1846 for $2 million to negotiate peace with Mexico, everyone understood the president would use the appropriated monies to gain Mexican land. In response, Pennsylvania Democratic representative David Wilmot proposed an amendment, a proviso, to the president’s request. Modeled after the Northwest Ordinance of 1787, the Wilmot Proviso stated that “neither slavery nor involuntary servitude shall ever exist in any part” of the territory obtained with the funds Congress would provide. Wilmot’s proviso thrust the contentious issue of slavery expansion into the center of the national political debate. There it would stay until the Civil War. Other proposals for keeping slavery out of the conquered Mexican lands would gain support in the North, but Wilmot’s proposed congressional ban on slavery in the territories would remain the clearest guarantee of freedom in the West for those who opposed the spread of slavery. And in the South, no plan to exclude slavery from the territories would be looked upon with quite the same horror as the Wilmot Proviso.

Two years later, in the presidential election campaign of 1848, Democratic candidate Lewis Cass of Michigan offered another solution to the territorial question. His plan called for permitting the people living in the territories to determine for themselves the fate of slavery within their borders. Non-intervention, as it was called, freed the sectionally divided national government from responsibility for deciding the future of slavery in the West. The Democratic Party, North and South, rallied around non-intervention, especially because the timing of the territorial decision was kept intentionally vague. In the North, it was assumed that the territories would be able to bar slavery immediately, as soon as they organized, and therefore would be able to block slavery from gaining a foothold from which it could not be easily removed. In the South, it was believed that the territories would only be able to decide whether or not to ban slavery when they voted for statehood, thereby allowing slavery a chance to establish itself before having its future tested in a popular vote.1

The Whigs responded to the Democrats’ efforts to finesse the slavery expansion issue with an even more effective method of obfuscation. Their presidential candidate in 1848, Mexican War hero Zachary Taylor, and their party platform, said absolutely nothing at all about the issue of slavery expansion. Their candidate had no record on the issue, and the party took no stand. Without a position, Whigs believed they could not possibly alienate either the South or the North, and so would gain support from both.

Some northerners were distrustful of a Whig Party that would not take a position on slavery in the territories, and they did not have much confidence in the uncertain Democratic non-intervention policy either. These discontented northerners formed a third party around the principle of the Wilmot Proviso, called themselves the Free Soil Party, nominated former president Martin Van Buren for president, and demanded an unambiguous congressional ban on slavery in the West.

By 1850, these divisions over approaches to slavery expansion had only deepened. Zachary Taylor and the Whigs had won the election in 1848 but still had no plan to deal with what was now the pressing issue of organizing the lands recently acquired from Mexico. As senators and representatives gathered in Washington in December 1849 for the first session of the Thirty-First Congress, tensions surrounding the unresolved territorial issue reflected themselves in the complex process of choosing a new Speaker of the House. A sufficient number of Free Soilers had been elected to Congress in 1848 to give them a balance of power in the balloting. They refused to support the Whig candidate, the former Speaker, Robert Winthrop of Massachusetts, whom they believed to be weak on the Proviso, and they certainly would not support the Democratic candidate, a southerner, Howell Cobb of Georgia. In a portent of what would be the pattern for the next nine months of debate over sectional issues, the House deadlocked. Without Free Soil votes, neither candidate could gain majority support.²

Complicating the balloting was the opposition of two leading southern Whigs, Robert Toombs and Alexander Stephens, both of Georgia, to their party’s candidate, whom they regarded as tainted by antislavery beliefs. Finally, after three weeks and sixty-two ballots, the two major parties caucused secretly and decided to call for the selection of a Speaker by a plurality, rather than a majority, of votes. There would now be no need for Free Soil support, but without the backing of Toombs, Stephens, and a few other southern Whigs, Winthrop lost the speakership to Cobb, who was finally elected on December 22, 1849, on the sixty-third ballot. “The long agony is over,” Cobb wrote his wife, Mary, relieved that the ordeal had at last come to an end. But the Free Soilers were outraged. Their votes had been rendered irrelevant, and, in their view, the democratic process had been thwarted. Ohio Free Soil representative Joshua Giddings offered a resolution calling the process “oppressive in operation” and “of dangerous tendency,” but his effort to block Cobb’s election failed.3

Congress moved on to the substantive issues of the session, but the speakership ordeal cast a shadow over the proceedings and gave members a sense of how divisive and contentious the coming sectional debate would be. On January 21, 1850, President Taylor added to the tension by submitting a message to Congress. Expanding on suggestions made in his message at the end of December, he presented his own solution to the territorial dispute. As a presidential candidate he had refused to take a stand on the slavery expansion issue, but now, as president, he was ready to offer a way out of the crisis. Since the issue in dispute was the fate of slavery in the territories, he suggested that the territorial phase be skipped entirely and that California and New Mexico (what the remaining portion of the Mexican cession, without Utah, was called) be admitted to the Union as states as soon as they made their requests, which he believed would be in the near future. Neither the North nor the South disputed the right of a state to decide whether or not to be free, and so neither section could complain if, as states, California and New Mexico made their decisions.

On its face, Taylor’s solution seemed simple: avoid the controversy over slavery in the territories by avoiding the period in which these areas were territories. The North would be satisfied because it was understood that if they voted immediately, both California and New Mexico would decide to be free states, and the South could not be dissatisfied because it would be as states, not as territories, that they would have made their decisions, and so no principle would have been sacrificed.

That plan might have sounded logical to Taylor, but most southerners were not persuaded. The bottom line was what mattered to them, and whatever the rationale, the end result of Taylor’s plan was likely to be their exclusion from the West. For that reason, many southerners preferred instead the extension of the Missouri Compromise line across the newly acquired Mexican territory. Such a stance involved many of those who advocated it in a contradiction: a congressional extension of the Missouri line would outlaw slavery north of the 36° 30' parallel and therefore violate their principled stand against the power of Congress to legislate on the status of slavery in the territories. But southern concern over their complete exclusion from the territories convinced some to adjust their thinking and support congressional action if it would at least gain the South secure access to a portion of the new lands. Other southerners continued to back non-intervention as a way, potentially, to gain entry into all the territories, north and south of the line, but the goal of southerners, whatever their specific approach, was the same—achieving the right of slavery to expand westward.

It was in this turbulent, contested environment that Henry Clay offered his compromise. On January 29 and again, in more detail, on February 5 and 6, he spoke to the Senate and to galleries that had overflowed onto the Senate floor. His “scheme,” as he called it, applied Cass’s non-intervention concept to New Mexico while allowing California, which had already expressed its opposition to slavery, to join the Union as a free state. And Clay went further. Recognizing the other remaining sectional issues that needed resolution if a complete sectional peace was to be achieved, he proposed a ban on bringing slaves into the District of Columbia for the purpose of sale, a Texas boundary settlement with New Mexico coupled with a payment of funds to Texas, and, finally, a more rigorous fugitive slave law than was then in effect.

“Taken together,” Clay declared, his measures “propose an amicable arrangement of all questions in controversy between the free and slave States, growing out of the subject of slavery.” But not all his colleagues agreed. Those northerners who wanted to see an unequivocal ban on slavery in the West, as the Wilmot Proviso would have provided, were not satisfied with the vague promise of non-intervention in Clay’s proposal, any more than they were with Taylor’s plan for immediate statehood. And among many southerners there was great anger. They feared exclusion, whether by Taylor’s statehood plan or Clay’s program of non-intervention. That anger intensified as they concluded that Taylor had maneuvered California into banning slavery, and as they heard Clay say that he was opposed to slavery expansion himself and was certain nature and existing Mexican laws would bar slavery from the West, whatever plan was implemented.4

Clay spoke in early February. Later in the month two powerfully influential speeches set the terms of the debate and defined the context in which Clay’s and the other solutions to the slavery expansion issue would be viewed. On February 11 and 12, John Berrien, a Whig senator from Georgia, addressed the Senate and focused on state equality, which he argued granted all the citizens of every state equal access, with their property, to the territories. Berrien, attorney general under Andrew Jackson, was respected by northern and southern senators alike, and his words had a great impact. The demand for equal access to the West based on state equality became central to the southern position in the debate, and Berrien’s arguments would be widely cited by both adherents and opponents of the state equality concept.5

Thaddeus Stevens also spoke in February, and he, too, helped define the terms of the compromise debate. On February 20, the Pennsylvania Whig representative, longtime defender of accused fugitive slaves, and future famed proponent of Radical Reconstruction lashed out at the South, attacking slavery and advocating the encirclement of the slave South by free states created from the new territories with the ultimate goal of bringing about abolition everywhere. Nothing more effectively confirmed in southern minds their suspicions of the North’s true intentions than Stevens’s threats, and nothing froze in the South the image of northern hostility to their institution of slavery and to their entire society than his bitter words. Other senators and representatives played a more recognized role in the debates, but few had a more profound impact on their course than Thaddeus Stevens.⁶

Other words, spoken in February, also had a powerful impact on the debate. On February 20, the same day that Stevens spoke in the House, Lewis Cass, addressing the Senate, clarified the meaning of his non-intervention doctrine. He denied that there had ever been uncertainty in the original formulation of his territorial position. Territories, he insisted, had the right to bar slavery from the moment they were formed. They did not have to wait until statehood to make the decision between slavery and freedom, as southerners hoped. Once again, southern fears had been confirmed. Some in the South would still advocate non-intervention, but their case was weakened. Southern mistrust of northern intentions had been heightened.⁷

In March, the debate intensified further with speeches from some of the leading members of the Senate. Each presented a different approach to the expansion issue, but taken together they were representative of the many contrasting views under discussion. On the 4th, South Carolina’s John Calhoun gave his last speech. In less than a month he would be dead. Too weak to speak himself, Virginia Democratic senator James Mason read Calhoun’s speech for him as Calhoun looked on. The dying southern icon gave a ringing defense of slavery, bemoaned the loss of an equilibrium between the free and slave states, blamed fanatics in the North for blocking enforcement of the existing Fugitive Slave Law, assailed northern aggression and control of the federal government, and invoked the image of the breaking “cords” of Union. He rejected both Clay’s and Taylor’s plans for the territories, calling Taylor’s an “Executive Proviso” since it would accomplish exactly what Wilmot’s Proviso would. Equal rights in the territories and a constitutional amendment that would restore power to the South were his solutions to the sectional dispute.8

The Senate’s lion and unwavering unionist, Daniel Webster of Massachusetts, followed Calhoun on March 7 with a powerful oration in which he called out in Shakespearian tones: “I speak to-day for the preservation of the Union. ‘Hear me for my cause.’” Webster, a schoolmate of Cass’s at Exeter, excoriated abolitionists and offered understanding and respect for slaveholders. For Webster it was not so much slavery itself as those “fanatics” who opposed it who were creating the national crisis. They believed, he argued, that “human duties may be ascertained with the precision of mathematics.… They have, therefore, none too much charity toward others who differ with them.” Webster denounced southern disunionists as well and argued that there was no reason for the conflict since the laws of nature already barred slavery from the West. The Wilmot Proviso, he claimed, was therefore unnecessary, and agitation from the North and South was the real threat to the Union. Most significantly, he endorsed a new fugitive slave law. Not surprisingly, Webster was vilified in portions of the North for his attack on abolitionists and his support for a more effective fugitive law, but many southerners appreciated his approach, and Webster himself was satisfied that he had spoken in defense of his beloved Union.⁹

On March 11, William Seward, one of the leading antislavery voices in Congress, presented a more radical northern view. The New York Whig senator and former governor ridiculed Calhoun’s claim that the founders had established an equilibrium between the states, endorsed the right of Congress to legislate in the territories, called for the immediate admission of the free state of California, opposed a new fugitive slave law, and took issue with Berrien’s notion of state equality. But most famously, Seward proclaimed the existence of a “higher law than the Constitution, which regulates our authority over” the national domain. Southerners were appalled. Once again their worst fears were confirmed. Northerners, it seemed, were ready to disregard the Constitution, the South’s bulwark against sectional encroachment, if it violated their own peculiar view of divine teachings. For the remainder of the debates, southerners would refer to Seward’s “higher law” assertion to prove northern disloyalty to the Constitution and to the founders.¹⁰

Two days after Seward spoke, Stephen Douglas, Democratic senator from Illinois and future head of his party in the North, addressed his colleagues. By Senate standards, Douglas was not a great orator. He spoke infrequently, preferring to control events from his crucial position as chair of the Committee on Territories. But he delivered a significant speech on March 13 and 14. In it he stated his opposition to the Wilmot Proviso, his belief in the natural limits of slavery expansion, his commitment to the continued validity of the Mexican laws against slavery in the newly acquired territories, and his support for the policy of non-intervention. Although Douglas insisted that he did not intend to boast of his “own superior sagacity,” his speech was largely self-congratulatory. Still, it was a strong statement in favor of the Compromise. Months later, as the debate came to an end, his support would prove critical to its passage.11

Ohio Free Soil senator Salmon Chase had helped found the Liberty and Free Soil Parties. No one was as well-versed in the intricacies of antislavery constitutionalism. He shared none of Douglas’s faith in non-intervention. The country’s policy toward slavery since the founding, according to Chase, had been “one of restriction.” “Freedom is national,” he declared in his March 26 and 27 speech. “Slavery only is local and sectional.” Nowhere, Chase insisted, was there any indication that the founders intended that there be an equilibrium of states. Furthermore, Chase advocated an end to slavery in the District of Columbia, denied any congressional authority over the capture of fugitive slaves, and praised the Wilmot Proviso. His stand was perfectly representative of the Free Soil position, and it had an influence among antislavery representatives beyond his party.¹²

All of these speeches mobilized support from those who shared their assumptions, and by the end of March the lines of conflict had been drawn and could not be easily denied or wished away. The debate raged on punctuated by the long-expected death of John Calhoun on March 31 and a surprising armed confrontation on April 17 between senators Henry Foote, Democrat of Mississippi, and Thomas Hart Benton, Democrat of Missouri, over alleged personally insulting language. Important statements were yet to come, but the basic outline of the debate was in place.

In April, the Senate established a Committee of Thirteen to write a report dealing with the issues that divided the sections. Clay chaired the committee and delivered its report on May 8. Its main feature was the plan, devised by Senator Foote and agreed to by Clay, to combine most of Clay’s original measures into one “Omnibus” bill. The idea behind the omnibus was that by joining the issues, senators and representatives who did not agree with some measures would vote for them anyway in order to obtain passage of the measures they did support. The Constitution, Clay reminded his colleagues, had been ratified in exactly that way, and if it had been separated into its parts might never have become the law of the land. The report itself generally followed Clay’s original proposal. Strikingly, it accepted the southern version of non-intervention for New Mexico, only allowing the territory to decide whether to be free or slave at statehood.13

That concession to the South did not matter to Clay since he believed both nature and what he claimed were the still-operative Mexican laws barring slavery from the territories would keep the area free anyway. But the concession was apparently not critical to the southern members of the committee either, since even with it included, the report failed to win their support. Despite Clay’s claim that the committee had worked in a spirit of “kindness” and “conciliation,” immediately after the report was made public its southern members voiced their dissent from what had been presented as the work of a majority. Even though California statehood was already pretty much accomplished, southerners were still upset that such a large free territory would be admitted to the Union without at least being divided into two states—one free and one slave. And they were not the only ones disturbed by the report. New Hampshire Free Soil senator John Hale was angry that without the Wilmot Proviso, the report “turns the whole of the territories into a slave pasture.” Then there was the president, who still favored his own plan. Clearly much debate lay ahead.¹⁴

Early in June, two House members delivered what were among the most significant speeches of the session. On the 5th, Indiana Democratic representative Cyrus Dunham gave a comprehensive, evenhanded presentation. He vigorously attacked abolitionists but blamed the South for provoking them. Strongly supportive of non-intervention, he was equally opposed to slavery expansion. While he admitted that there was truth to the charge that the North failed to enforce the existing Fugitive Slave Law, he attacked the South for imprisoning free African American seamen working on northern ships docked at southern ports. And he combined a sharp critique of the southern claim of state equality with a rejection of Seward’s invocation of a “higher law.” Few congressional speeches were as balanced and incisive, and yet none captured as effectively the impediments to true compromise. Dunham begged each section to be tolerant of the other, but by articulating so effectively an understanding of their differences, he demonstrated precisely how difficult reconciliation would be.¹⁵

The next day, Virginia Democratic representative Richard Meade made clear just how far Congress was from Dunham’s dream of reconciliation. After denouncing the “political and moral deformities which beset northern society,” Meade proceeded to present to his colleagues the entire array of southern contentions. Northerners, he insisted, treated their laborers more harshly than slaves, who were the “happiest people … on earth.” Racism, he argued, was rampant in the North. Abolitionists should turn their attention to problems in their own “neighborhoods,” rather than to the South, where their goal was to “stir up” slave unrest. Speaking to constitutional issues, Meade claimed that majority rule threatened the republic and that state equality was fundamental to the Union. Alarmingly, he predicted that under the Wilmot Proviso, the South would have to “submit to a violation of the Constitution, perpetual inferiority, [and] self-abasement.” But most critically, Meade accused the North of planning to encircle the South with new free states and concluded that “my race and my country are threatened; we are now engaged in a death struggle.” The southern response to this crisis, he openly and forcefully stated, had to be the establishment of slavery in the West.16

With that declaration, it was now the North that had its fears confirmed. Southerners were not just seeking the right to move into the new territories with their slave property. They were proclaiming that this was their clear goal. Northerners could not easily ignore what they were hearing on the floor of the House.

As the Senate and House deadlocked in debate, events outside the halls of Congress began to influence the progress of the session. In June, a convention of the South convened in Nashville to discuss the sectional crisis. Unevenly attended, it did not have the impact once envisioned by its organizers. Still, in order to rally support, it passed a resolution favoring the extension of the Missouri Compromise line as a solution to the territorial question and then temporarily adjourned, promising to meet again after Congress finished its work. Meanwhile, in Texas, the governor threatened to send troops to Santa Fe to defend the Texas claim in its boundary dispute with New Mexico. As a result, many in Washington panicked, fearing an imminent violent confrontation in the Southwest. Clearly, Congress could not indefinitely delay taking some kind of action and still maintain peace on the southern frontier. Then, on July 9, President Zachary Taylor died from what was thought at the time to have been an attack of cholera. Suddenly, one of the key opponents of the Clay Compromise was no longer present to work against it. And throughout Washington fears spread that the disease that had killed the president and was now devastating nearby Harper’s Ferry, Virginia, would soon take more lives in the nation’s capital. Summer temperatures were soaring and events were conspiring to convince the members that it was time to finish their work and leave town.¹⁷

Still, the debate in Congress remained intense. Added to the sectional divisions was a resentment of the very concept of the omnibus bill. To a number of representatives and senators, the combined package of measures was coercive, forcing members who supported some parts of it to abandon their opposition to other parts in order to achieve passage of the measures they favored. Although the unified package received support along the border between the sections, areas that were genuinely committed to compromise, northerners and southerners elsewhere united to defeat it. The underlying problem was what it had been since the start of the session. Neither side was willing to sacrifice what it believed in order to gain a lasting sectional peace. Neither was willing to vote for measures they opposed and then return home to their constituents and defend their decision to compromise for the sake of national reconciliation. Few members were ready to risk their political careers in order to make such an attempt. The sectional divisions simply ran too deep to allow for that kind of an effort. Without that commitment, there would be no opportunity for the public to be educated to the value of compromising positions in order to achieve a greater goal. In 1850, a true compromise was already beyond reach.

But a temporary fix was still possible. With the failure of the omnibus package at the end of July, Henry Clay left Washington in frustration for a rest in Newport, Rhode Island, and President Millard Fillmore and Senator Stephen Douglas proposed a solution originally supported by Clay himself: vote on each measure of the Compromise separately. The Compromise could pass by gaining sufficient support from the border areas to combine with northern votes for measures the North wanted, and with southern votes for the measures the South wanted. In that way the entire package would become law without ever having to be voted on as a whole. It was a brilliant stratagem, and it worked because it required neither section to do what it could not—actually compromise any of its positions. Each side achieved what it favored without having to vote for what it opposed.18

In August and September, Congress passed the Compromise in this way, measure by measure. An undivided California was admitted to the Union as a free state. A policy of non-intervention, still variously understood, was applied to the remaining areas of the Mexican territories. A new Fugitive Slave Law that lacked the northern demand for a jury trial and established federal commissioners to try and judge cases of alleged runaways was enacted. Especially upsetting to the North, these commissioners would be paid more for finding in favor of the slaveholder and against the accused slave. A law that barred bringing slaves into the District of Columbia for the purpose of sale also passed. And most significantly, Texas gave up its claim to a western border at Santa Fe in return for a payment of $10 million. This last measure was in some ways key to the acceptance of the entire Compromise. It actually required the placement of an explicit, tangible line between Texas and New Mexico, a line dividing slavery and freedom. No amount of linguistic obfuscation could resolve this issue. It alone necessitated a true compromise of positions.¹⁹

MAP: The Compromise of 1850. Created 1919 by the McConnell Map Company. (Geography and Map Division, Library of Congress, LC Call No. G3701.s1S2200.M2)

A temporary peace had been achieved, the sectional conflict had been finessed once more, and some celebrated in the belief that “finality” had been attained at last. Others knew better. As the session neared adjournment, Indiana Free Soil representative George Julian explained to his colleagues and to the nation that the “question which more than all others comes home to the bosoms of men is, whether slavery or freedom shall have the ascendency in this Government.” That question, warned Julian, “must be met. Neither acts of Congress nor the devices of partisans can postpone or evade it. It will have itself answered.”20

In 1850, that question had been asked amid a “strife of tongues.” Slavery was at the heart of the nine-month ordeal Congress had passed through. Day after day congressmen rose in the capitol and addressed that issue, and with each speech, each utterance, genuine reconciliation became more and more elusive. How the question of slavery in the republic would be answered would only be determined in the coming decade, but in the language of the debate the outlines of that building crisis could already be discerned.