CHAPTER 28
Two myths dominate histories of the Compromise of 1850. The North-South clash supposedly defined the antagonism. Henry Clay supposedly directed the reconciliation.
The Kentucky Whig instead provoked a controversy as important as the one between warring sections: a bitter clash within the South. Deep South senators demanded and secured critical revisions of Henry Clay’s Border South design for sectional adjustment. Especially after slaveholders had made Clay’s proposals less northern, the Southern Whig’s bills could not have carried the majority section, unless Northern Democrats overcame Northern Whigs’ opposition—and perhaps unless President Zachary Taylor, Clay’s most threatening Whig rival, died.
Henry Clay’s relative powerlessness left entities besides the nation but precariously intact. Southerners more than ever despaired that their section was divided. Southern Whigs more than ever winced that their northern wing was anti-Slavepower. Such longstanding perceptions, much sharpened by mid-century crisis and little dulled by an ambiguous armistice, would swiftly undermine the shaky settlement.
1
At the end of the 1840s, California’s fate took such a northern swerve that only the emergence of other issues made appeasement of the Lower South possible. In 1848–9, discovery of gold in California lured 80,000 fortune hunters westward. Few gold dusters were Southerners. Only an occasional ’49er brought a slave. Treasure seekers desired to make California a free labor state immediately. If free laborers’ surge towards statehood triumphed, slavery would be barred in 16 states, allowed in 15. Southern control over the Senate, that longstanding counterpoise to the northern-controlled House, might be permanently lost.2
Many Southerners reluctantly accepted this unfortunate happening. California territory contained more people than did some states; and few Southerners denied that a state’s citizens could abolish slavery. No United States government ban had prevented Southerners from peopling the Golden Hills. In the race to mine nuggets, Northerners had just arguably demonstrated faster feet. With a swifter population surge and not an insulting federal proscription propelling Yankees to victory, why defy a fait accompli?
Partly because federal inaction had arguably left another morally officious edict operative. The conventional belief at the time-a viewpoint probably true in retrospect—was that the old Mexican antislavery law remained in force in the Mexican Cession, until a new American law superseded it. In the late 1840s the American Congress, paralyzed over the Wilmot Proviso, had failed to pass a territorial slave law. Doing nothing meant doing something crucial: arguably allowing the emancipating Mexican law to continue. Southern entrepreneurs were reluctant anyway to experiment with valuable slave property in distant, uncertain California. With the Mexican legal ban apparently loading the dice still more in Yankees’ favor, as some Southerners analyzed the situation, few slaveholders dared rush to the area.
That judgment led to demands for a fairer race. An American law protecting property of all settlers should replace the Mexican ban on slave property. The resulting fresh legal situation might or might not produce a southern surge towards California. But at least right principles would be secured and an unfair victory nullified.
Believing that Mexican moral proscription might have helped preclude an enslaved California, key slaveholding leaders were determined not to allow David Wilmot or the old Mexican law to bar slavery in other Mexican Cession areas. A countervailing American slave law would rid all New Mexico and Utah territories of the Mexican antislavery ban. Alternatively, congressional confirmation of Texas’s extravagant land claim would shield at least some New Mexican territory from past Mexican and/or future Wilmot decrees. Texans claimed their domain, in Mexican times, had sprawled to the Rio Grande, north as well as south. Texas would then have included two-thirds of what became New Mexico and a little of what became Colorado. Less Mexican Cession territory would have been left for Mexican law and/or David Wilmot to declare off-limits to slaveholders.3
Most Yankees, and especially capitalists who had invested in Texas bonds, preferred another solution to the New Mexico/Texas boundary. Bondholders’ lobbyists swarmed among congressmen, urging the national government to assume obligation to pay off Texas bonds. In exchange for national financial aid, Texas could cede its New Mexican land claim to the national territorial domain. More intransigent Southerners responded that a slave state must not be bribed to shrink its slaveholding borders. But more moderate Southerners saw that a sister state would be financially richer, as would congressmen owning Texas bonds.4
Meanwhile, slaveholders might not be land poorer. True, New Mexican turf, when no longer part of enslaved Texas, would be vulnerable to a law against slavery in Mexican Cession territory. But if Congress would defeat the Wilmot Proviso, and if the New Mexican territorial government or United States constitutional law would replace the Mexican ban with protection of the institution, and if enough slaveholders would come, New Mexico might become a slave state. These “ifs” added up to southern territorial prospects so chancy as to make Southerners churlish fellows.
An old irritant resurfaced to make Southerners still edgier. Since gag rule times, some Yankees had wanted to ban slavery in the federal capital. Failing that, reformers wished to bar slave sales in Washington. Federal action to cleanse the republic’s capital of an unrepublican institution seemed to most planters symbolically distressing. Abolition in Washington would also be constitutionally distressing. A federal government able to emancipate in the capital could arguably end slavery wherever it had legal jurisdiction, including in new territories and in federal forts within slave states. Moreover, as Calhoun had pointed out long ago, the District as a freesoil enclave might menace neighboring enslaved counties.
Three significantly enslaved counties neighbored on the not-much-enslaved capital city. On the District’s Virginia side, slaves comprised 30% of Fairfax County inhabitants in 1850. On the Maryland side, Montgomery and Prince Georges counties contained 32% and 53% slaves respectively at mid-century. Recently, slavery had slowly receded from these areas. Absolute numbers of slaves had dropped over 2,000, or 10% in the three-county region between 1830 and 1850. Washington’s hinterlands thus formed both a symbolic and practical example of slavery’s greater vulnerability when freer areas were close. If the District became altogether free, a rare black belt north in the South might come under more pressure.
A new federal fugitive slave law could relieve the pressure. In this age of little federal power or police force, Washington officials had to rely on state or local police to capture slave runaways who escaped to the North. Equally important, in this era where a very few Supreme Court and U.S. district judges had to cover all American areas, the federal government needed state and local justices of the peace to provide judicial processes under national fugitive slave edicts.
In its famous decision on Prigg v. Pennsylvania in 1842, the United States Supreme Court ruled that state and local officials need not supply police and judicial aid. Since the Constitution gives Congress exclusive power over fugitive slaves, the Court reasoned, state governments could proclaim themselves powerless to chase bondsmen.5 After the decision, many states passed so-called Personal Liberty laws, barring their officials from performing Washington’s fugitive slave chores.
Disappearance of state bureaucratic aid left the federal nonbureaucracy unable to cope with slave runaways, as several post-Prigg incidents made clear.6 Some border slaveholders at mid-century, seeking to shore up the vulnerable law, asked Congress to provide federal posses and legal officials to help chase down human property. That controversial demand, when added to controversies over the District, Texas bonds, New Mexican boundaries, the Mexican Cession, and California, left centrists who would save the nation overwhelmed with their task.
2
Always before, the National Democratic Party had best played savior. In the Missouri, Nullification, Gag Rule, and Texas controversies, only Northern Democrats had cooperated with southern allies in passing concessions to the South. Southern Whigs could carp that Jacksonian concessions conceded the South too little. Or they could demand further concessions. Thereupon, the National Democratic Party usually delivered more and Northern Whigs always denounced the Slavepower more roundly.
This time, cheered those Southern Whigs who aspired to do most for slavery, everything will change. Never before had a Deep South planter secured the party’s presidential nomination. Never before had Southern Whig sectional partisans such as Alexander Stephens and Robert Toombs of Georgia consulted with a President-elect about cabinet nominees. Louisiana’s Zachary Taylor, exulted long-frustrated Deep South Whigs, would act as a Southerner should. By seeking national protections of slavery, the President would prove at last that the Whig Party could out-southernize the Democracy.7
Deep South Whigs’ belief that their one man could turn around their party came partly because Taylor was so friendly to Southerners, partly because the Louisianian seemed too large a slaveholder to turn against his homeland, and mostly from desperation. The Texas issue had proved that slavery measures damaged Deep South Whiggery. The Whigs’ No Territory solution had failed to keep measures about slavery out of politics. Emphasis on Taylor, the man to the manor born, had helped raise the candidate to the presidency. To sustain that loyalty theme, the elected Whig President now had to secure pro-southern law, in defiance of his party’s northern wing.
But General Zachary Taylor, lover of national military strength, was not the man to stand defiantly for his section.8 Many months before coming to Washington, Taylor had imbibed the city’s longstanding terror of sectionalism.9 The same impulses propelling Van Buren’s Gag Rule and Cass’s Popular Sovereignty guided Taylor’s proposed way to defuse the crisis of 1850. Once again, a statesman sought to solve congressional slavery controversies by removing the issue from Congress.
Zachary Taylor would let states instead of Congress decide about slavery in the Mexican Cession. Between his inauguration in March of 1849 and his first annual message to Congress at the end of the year, Taylor privately encouraged residents of both California and New Mexico to write a constitution, then request admission as a state, with or without slavery, as each territory’s inhabitants wished. Taylor reasoned that skipping the territorial phase, when Congress supervised areas, and rushing to the statehood phase, when Congress had no jurisdiction, would circumvent congressional controversy. Californians already had written their state constitution, Taylor told Congress in his first annual message. New Mexicans would soon follow suit. Congress should admit the two states and thereby escape congressional controversy on slavery in what would otherwise be territories.10
Taylor had no wish to complicate this end run around controversy by confronting other disquieting issues, such as fugitive slaves. The Louisianian considered irrelevant what was delightful to Northern Whigs and outrageous to the more sectionally oriented Southern Whigs: that residents of the proposed two new states would choose to be free. Taylor only desired to keep the nation free of slavery controversy. He succeeded in deepening the turmoil in his land and party.
Taylor has accordingly come down in history as a foolish novice, loose from the moorings of party experience and weakening the national institutions he sought to preserve. Much about Taylor furthers the image of a fumbling country bumpkin. He was a poorly educated soldier, short and squat, with a craggy face bordering on the ugly and a down-home way of speaking bordering on the preposterous. (“We are at peace with all of the world,” went one of his laughers, “and seek to maintain … amity with the rest of mankind.”) His most trusted advisers included New York’s William H. Seward, that Yankee freesoiler most distrusted in the South.
Still, the image of the stumbler who blundered toward the North misses the point about Zachary Taylor and his style of southernness. His was the orientation of that nationalistic Southern Whiggery long most powerful in Louisiana and especially in the Border South. His program came straight out of his favorite Upper South counselors’ late failed efforts. He would restore nonsectional, nonpartisan Whiggery, whole, patriotic, and triumphant.
Zachary Taylor’s restoration required removing the side of Southern Whiggery which southern sectional partisans most wanted to emphasize: the native-born Southerner who would be surest to be truest to slavery. That partisan ploy in southern loyalty politics had always mocked the party’s self-proclaimed image as rescuer of chaste republicanism from Jacksonian demagogues. Taylor, a Whig partly because a foe of disruptive politics, had been delighted to be nominated for President as a No Party as well as a Whig Party candidate. He would now rule as if No Party had elected him. Hitting Whig politicos where it most hurt, he handed out patronage posts to Democrats and freesoilers as well as to Whigs.11
Taylor also defied the very heart of the national spoils system: the newspaper-politician complex. Editors such as Thurlow Weed, Thomas Ritchie, and Duff Green gave their readers, alias voters, partisanly slanted news. Partisan candidates, when elected, repaid partisan editors with plum printing contracts to publish official debates and laws. The plushest and most powerful Whig newspaper had long been The National Intelligencer, based in Washington and supporter of Clay and Webster, those famous Whig partisans. Zachary Taylor would offer no printing contract to the likes of the Intelligencer. He instead started his own newspaper, with the appropriately classical title, The Republic. To edit this anti-insiders’ sheet, Taylor imported a Washington outsider, none other than Albert T. Burnley.
Burnley was that Texas slaveholder who had continually warned his partner, Beverley Tucker, and through Tucker the Tyler administration, that only annexation could protect slave investments. This Southwesterner saw no parallel practicality in protecting almost non-existent slavery in New Mexico. Burnley instead latched on to another side of Beverley Tucker Whiggery: that the party must replace spoilsmen with patricians.
On slavery issues especially, Zachary Taylor and his closest advisers aspired to recapture Whiggery’s nonpartisan legacy. The President’s notion that the slavery issue should be removed from partisan contention recalled the effort back in 1848 of his Secretary of State, John M. Clayton of Delaware. Clayton was the ultra-nationalistic Border Whig who just might have deflected the course of antebellum history when he refused to be considered for William Henry Harrison’s running mate in 1840, thus clearing the way for John Tyler, and soon thereafter Abel P. Upshur, and soon thereafter the Texas Controversy so harmful to Whiggery. In 1848, John Clayton, then a United States senator, had tried to muzzle slavery controversy by moving that the supposedly nonpartisan Supreme Court decide all territorial questions. Many Southern Whigs had supported this ultimately defeated Clayton Compromise. Zachary Taylor regretted that Clayton had failed.
Taylor’s alternate way of snatching the slavery issue from congressional rabblerousers resembled another failed movement commenced by another Upper South Whig in the President’s cabinet, Secretary of the Navy William B. Preston of western Virginia. In 1849, Preston, then in the House of Representatives, had moved to bypass Congress by making the whole of New Mexico and California one huge state. Some Deep South Whigs had at first relished that panacea. The Mexican Cession “cannot be a slave country!” Georgia’s Robert M. Toombs had declared. “We have only the point of honor to serve, and this will serve it and rescue the country from all danger of agitation.”12 Taylor’s New Mexico/California proposal sought to resurrect that Whig spirit, even if two northern states would result instead of Preston’s one.
The President above all else would revitalize that Whig treasure his military blitz through Mexican territory had ironically helped slay: No Territory. By sweeping all Mexican Cession territory into two states, Zachary Taylor would leave no territories left to dispute. No Territory would kill agitation over slavery in territories, restore a Union where sections did not hate each other, allow No Party to make Whig nonpartisanship the saving reality.
Old Rough and Ready was soon thrashing around Washington in a manner reminiscent of Old Hickory. He threatened to veto any congressional plan not as pristine as his. He promised to march on Texas if that slaveholding state refused to honor freesoil New Mexico’s boundary claims. Worse, by offering the North two states and showering Northern Whig partisans with the aura of a Deep South planter’s nonpartisan administration, Zachary Taylor, general who would be peacemaker, helped lend the party’s northern wing a fighting zeal as anathema to most Whigs in the farthest South as was Taylor’s program.13
Nothing so poisonous had happened to National Whiggery since the only other time Whigs had won a national presidential election and thus had to govern instead of criticizing Democrats’ administrations. But this time the poisoner was no Vice President who accidently became President, no states’ righter who represented a southern extreme uncomfortable within Whiggery. Zachary Taylor was not John Tyler or Abel P. Upshur. He instead sought to represent all those big slaveholders in all those Whiggish black belts who had long found Jacksonians to be coarse, uncouth, embarrassing, not the way a patrician ought to sound. Such titans wanted peace and quiet, prosperity and union. They asked only that avenues toward silence not be insulting to the South.
Zachary Taylor, seeking a national silence insulting to no one, became instead the butt of insults in his section. That a Southerner so nationalistic, the epitome of the patriarchal Whig spirit, should resurrect No Territory, the most soothing of Whig dogmas, and end up with a program so shattering to National Whiggery illuminates something more than cruel paradox. Zachary Taylor’s was the fate of a national party so badly divided that it could not rule on slavery issues, even with its most disinterested statesman pursuing its most nonsectional traditions, without shattering itself on the rock of section.
Taylor, mercifully, did not live to see the shattering. On July 4, 1850, the President sat too long in the torrid sun while helping to celebrate the nation’s birth. He then downed too many cherries and too much milk. Within 24 hours, Taylor was in agony. Within five days, he was dead. The new President, Millard Fillmore of New York, was not taken with Taylor’s resurrection of past panaceas. Fillmore would approve a new solution, assuming one could be found. Whiggery’s fate now hinged on warring Whig congressmen.
The more sectionally combative Southern Whigs had all along been riding for a fall with their Taylor chimera, even assuming the President had been their hoped-for Slavepower warrior. The Whig Party was more than ever too top-heavy to the North to become pro-southern. In the Congress of 1850, 64% of southern representatives and senators were Democrats; 58% of northern congressmen were Whigs. Northern Democrats controlled 56% of Lower North seats but only 24% of the Upper North’s. Meanwhile, Southern Whigs controlled 52% of Border South seats but only 23% of the Lower South’s. No hero, not even an Andrew Jackson, could have molded such predominantly Yankee and border troops into a Slavepower brigade.
3
Before Zachary Taylor died, another American hero challenged the Whig alias No Party President for control over mid-century issues and the Whig Party. For almost four decades, the Henry Clay who bid to save party, section, and nation from Taylor had been the most powerful slaveholder in Washington, save only for Old Hickory. But no one called the Kentuckian Clay of the South. Henry Clay was Harry of the West. Even more than Thomas Jefferson, whose slavery tradition he carried on, Henry Clay, to the Deep South, epitomized The Problem.
Abraham Lincoln, in contrast, would consider Henry Clay the solution. Lincoln would aspire to be a Henry Clay Whig in the White House partly because of the Kentuckian’s nationalistic economics, partly because of Clay’s Union-first priorities, and partly because the Illinois Republican and the Kentucky Whig shared the same vision of easing slavery away. Henry Clay, large slaveholder, deployed within the establishment a more politically aware version of the southern apologetics which his cousin, Cassius Clay, hoped might produce a southern wing of a Wilmot Proviso party.
On removing slavery, Henry Clay started out way to the left of cousin Cassius and quickly swerved well to the right. Witness Henry’s proposals to the two Kentucky state constitutional conventions, a nice neat half-century apart, which formed bookends around his career. When a young politician just come to Kentucky in 1799, the future Great Compromiser urged an uncompromising end to an “enormous evil.” Young Henry would free slaves and give them the “rights of citizens,” after “poor orphans” had been properly prepared.14
Long before coming to cousin Cassius’s aid a half-century later, Henry Clay had retreated to the orthodox notion that the poor orphans should never be let loose in America, much less as citizens. By chairing the 1849 meeting inaugurating the Kentucky slavery controversy and by writing a candid public letter to one Richard Pindell, Clay risked his establishment career in a manner that was not reminiscent of Thomas Jefferson. Clay’s Pindell Letter remained a call for Jefferson’s panacea: post-nati emancipation of Kentucky slaves born after either 1855 or 1860 at age 25, with three more years of American labor required to pay for mandatory transportation to Africa.15
Cassius Clay preferred to let removal from Kentucky pay for itself. He would force slaveholders to dispatch blacks to other states’ slave auctions. Henry Clay, too genteel for that coarse remedy, also was no bowie knife-wielding agitator. His public declarations for ending slavery were occasional. Like Thomas Jefferson, he never would have called for class warfare against slaveholders. Again like Jefferson, Henry Clay always urged non-action on slavery, if action endangered Union. Where Cassius Clay, unlike Jefferson, freed all his slaves before attacking slavery, Henry Clay freed only a few of his 60 slaves, sold some, Jefferson-like, to cover debts, and emancipated only the afterborn of the remaining 35, with provision for colonization, in his will. The Kentuckian’s final testament, like everything about the Clay/Jefferson version of Conditional Termination, was one great big compromise.
The Great Compromiser had still spent a career troubling slaveholding perpetualists by carrying on Jefferson’s apologetic tradition. Clay had urged colonizationists to go for federal aid in 1827. His Distribution Bill of 1832 had called on states to use distributed federal funds to deport freed slaves. His gag rule speech had argued that emancipation in Washington was constitutional and should be essayed after Virginians and Marylanders swept slavery away. He had opposed Tyler’s Texas treaty. In 1847, he had denounced further territorial acquisition from Mexico and “emphatically” disclaimed territory “for the purpose of propagating slavery, or introducing slaves from the United States.”16 The Great Compromiser, on the eve of “his” Great Compromise, stood for David Wilmot’s containment, with Abraham Lincoln’s eventual addendum that blacks barred from diffusion over liberty’s hemisphere might be redelivered to the Dark Continent.
Clay’s famous senatorial oration of February 5–6, 1850, brought these lifelong themes to a17 The myth that the great speech laid down terms of eventual compromise is related to the myth of a South. Henry Clay, despite slaveholdings in the top 5% of southern planters, was too thoroughly a Border South man to define a settlement acceptable to Deep South planters.
Amongst Clay’s proposals, only the least important secured both affirmation further south and eventual enactment to Clay’s specifications. Still, that exception, Clay’s suggested reform of Washington’s slave trade, rivals Andrew Jackson’s initial post office policy as a jewel of a political aside. Clay’s gem loses its luster in the conventional generalization that the Kentuckian urged and Congress passed abolition of the slave trade in the District of Columbia.
Rather, the Kentuckian demanded and Congress enacted a law against only the most anti-patriarchal aspects of the slave trade. Henry Clay especially hoped never to see again a slave trader “shock the sensibilities of our nature” by pushing “a long train of slaves” down the avenue connecting the Congress “and the Chief Magistrate of one of the most glorious Republics that ever existed.” Clay proposed striking down slave dealers and auctioneers in the republic’s capital. The resulting law banned slave depots, auctions, and bondsmen brought into the District “for the purpose of being sold.”
But other sorts of “kinder” slave sales could and did continue in the capital. “I do not mean” to abolish, Clay explained, a slave sale “by one neighbor to another.” Private sales often put a husband together “with his wife or a wife with her husband.” Thus was enacted a southern paternalist’s utopia: personal sales of “the people,” without impersonal slave traders mocking patriarchy.
Most southern patriarchs found every other Clay proposal intolerable without revision. No revision could have made tolerable Clay’s suggested mode, or any mode, of abolition in the District. “It is inexpedient,” ran Clay’s phrasing, “to abolish slavery in the District of Columbia, whilst that institution continues to exist in the State of Maryland, without the consent of that State, without the consent of the people of the District, and without just compensation.”
This sloppy wording, itself indicative of Clay’s Border South mentality, could be interpreted as even more fatal to District slavery than Clay perhaps intended. Clay’s verbiage invited the conclusion that even “whilst” slavery continued in Maryland, bondage could be abolished in the District, assuming proper consents and compensation. Maryland was already half-emancipated. The most populous and abolitionized half of the state, North Maryland, numerically could and maybe would have turned a state-wide plebiscite on federally compensated District abolition positive anytime after 1850.
Even if Clay meant that the District’s abolition must await Maryland’s, a critical change in his longstanding position made the liberation of Washington slaves more likely. In gag rule times, the Kentuckian had made Maryland’s and Virginia’s abolition and consent the prerequisite for action against slavery in the District. Clay now dropped the Virginia half of the precondition, he explained, because the District had lately returned all Virginia land originally ceded. Since the capital now stood exclusively on ex-Maryland land, only Maryland need consent. This narrowly legalistic argument ignored slaveholders’ true reason for seeking consent of contiguous areas: because slaveholding neighbors cared if free soil was across the border.
Clay’s critical revision also made District abolition more likely, for Maryland, unlike Virginia, was slowly evolving towards freedom. Henry Clay hardly here proposed, as the textbook formula has it, abolition of slave sales but not of slavery in the District. Rather, the Kentuckian would preserve private slave sales, abolish public dealers and auctioneers, and abolish slavery itself under forseeable conditions in Washington.
Most slaveholders found too much abolitionism in Clay’s proposals for Mexican Cession territories too. His fellow Southerners must understand, instructed Henry Clay, that slavery could not and ought not spread, not into New Mexican territories, not anywhere at all. A New Mexico destined for mining was no place for an institution blessedly destined to diffuse outside the republic. “If nature has pronounced the doom of slavery in these territories—if she has declared, by her immutable laws, that slavery cannot and shall not be introduced there—who can you reproach but nature and nature’s God?” Even if God had made slavery profitable, added Cassius Clay’s cousin, “I never can, and never will vote, and no earthly power can make me vote, to spread slavery over a territory where it does not exist.” He had no wish “to propagate wrongs.”
Henry Clay urged Congress to affirm the morally right by admitting California as a free state. As for New Mexico and Utah territories, the Kentuckian considered Mexican abolition in force unless Congress explicitly repealed it. What Mexican law banned, nature’s God scorned. Since desert climate would never tempt slaveholders, Congress need not pile the Wilmot prohibition atop Mexican prohibition. Clay instead proposed a preamble to laws organizing the two territories, stating that, “as slavery does not exist by law, and is not likely to be introduced,” Congress would establish territorial governments without mention of the institution.
Nor should southern concessions end with language conceding the Mexican Cession now and possibly the District in the future to Northerners. Clay’s most damaging proposal, from slaveholders’ perspective, involved the boundary between Texas and New Mexico territory. New Mexicans claimed their southern boundary ran due east from El Paso, a third of the way across Texas, before the boundary curved way north. Clay would instead extend New Mexico’s southern boundary straight across to the Sabine River.18*
Clay thus would reduce Texas to half of its claimed self, just as Thomas Hart Benton had proposed in annexation times. Worse, by lecturing Texans “to be satisfied with” an area “competent to form two or three states,” Clay would gut Southerners’ hard-won authorization to divide Texas into five states.19 Worse still, the Great Compromiser would excise from enslaved Texas some of the state’s lushest river bottom lands, areas where slavery was already well entrenched and would swiftly become massively consolidated.20 Clay’s line would have given to New Mexico the upper reaches of the Brazos, Trinity, and Sabine river valleys and the whole Texas side of the Red River. On the proposed New Mexican side of Clay’s boundary line lived in 1850 some 20,000 bondsmen, one-third of Texas’s slave population. The area to be sliced from Texas included the county with by far the state’s largest slave population (53% enslaved) as well as four of the next six largest (averaging 38% enslaved). All these river valleys naturally conducive to slavery would be swept into a New Mexico Territory where Clay’s governing statute would declare that Congress forbear to pass slavery laws since nature’s God and Mexican law already banned the institution!
Clay’s proposed Texas boundary would likely not have freed those 20,000 slaves, any more than the Northwest Ordinance had freed slaves already in Illinois. Panicky slaveholders might have seized control of the New Mexican legislature or moved their some $15,000,000 investment in forced labor out of the imminently to be freed zone. But Henry Clay’s line on the map would have effected one of the largest mutilations of an enslaved state ever to be proposed in an antebellum Congress. This was a compromise?
The Great Compromiser answered that Yankees must make concessions too. The federal government, by assuming the Texas debt, should pay Texans to surrender half their claimed territory. Congress should also hand Southerners an enforceable fugitive slave law. That law, said Clay in yet another defiance of southern orthodoxy, should include jury trials in the South for fugitives extradited from the North.21 With mutual concessions, concluded Clay while waving a fragment of George Washington’s coffin, the Union would be preserved. Without any concessions, he added while glaring at southern hotheads, he would “defy all power upon earth to expel me or drive me” from my country.
Henry Clay’s peroration recalled Zachary Taylor’s language. The two nationalistic Southern Whigs would both concede the entire Mexican Cession, one way or another, to the North. But colliding ways of conceding showed again that the Deep and the Border South remained different worlds. Taylor, large slaveholder of the southernmost South, sought solutions shorn of David Wilmot’s insult to his class. Clay, big slaveowner in the northernmost South, endorsed the insult. Slavery was wrong. It must not expand. It should ideally be expelled from the District. It ought to be removed from half of Texas. So ran this Southerner’s idea of a national party’s mission.
Not since Thomas Jefferson reached out for a colonization alliance with Jared Sparks had a southern insider stood so ready to work with helpful outsiders to secure a national program so dubious for slavery. Not since Lord Aberdeen sent out tentative feelers about chipping away at New World slavery had a national statesman sought a Manifest Destiny for Texas—and for North America—so free of enslavement. Like Jefferson’s and Aberdeen’s cautious gestures towards terminating slavery, Clay’s program was so highly conditional on national concurrence and peace that proslavery warriors could easily deter it. But with Henry Clay’s plan now vying with Zachary Taylor’s as the foundation of National Whiggery, southern intransigents felt compelled to get on with deterrence.
4
Henry Clay’s prime Southern Democrat antagonist launched the anti-Clay onslaught from a weird angle. Mississippi’s Senator Jefferson Davis, who had made a minor name for himself in the Mexican War, emerged as the major Deep South opponent of the Border South hero. The Mississippian fought the Kentuckian in the name of slavery’s blessings. But Davis’s plantation practices implicitly announced that southern slavery was normally not so blessed.22
The locale of the Davis family’s effort to bend a normally defective institution into abnormal beneficence was called, for other reasons, Davis Bend. Below Vicksburg, the Mississippi River bends west and then almost immediately east again, forming a lush peninsula. The Davis plantations, uniquely nourished on three sides by the South’s greatest river, were uniquely managed on a northern principle. Slaves could not be whipped or ironed on Davis Bend until a jury of peers voted to convict the accused. By insisting on jury trials for noncitizens, the Davises implicitly declared that in republican America, legitimate social control required more consent than was acted out in those Massa-Cuffee charades.
A Davis plantation’s spot for legitimate republican rapprochement was called the Hall of Justice. Within these “courthouses,” slaves were judge as well as jury. Overseers were prosecuting attorneys. Massa Davis retained power only to lower the sentence on allegedly disobedient slaves, should he believe a slave jury authorized too many lashes.
Overseers loathed this institutionalization of slaves’ overseeing. The employee’s unhappiness necessitated the employer’s presence. Without slaveowners resident and powerful, slave jurors and exasperated overseers could irrevocably clash. Then indiscriminate lashing, dismissed overseers, exasperated new managers, worse lashings, and more dismissals would ensue. That defect in the Davis system notoriously plagued Jefferson Davis, who spent many months in Washington as senator and cabinet member.
Jefferson Davis still persisted in the novel management system. Persistence despite adversity yielded proof of the senator’s sincere belief in Davis Bend’s unusual reconciliation of democracy and slavery. When the future Confederate president arose in the Senate to tell Henry Clay that slavery was a permanent positive good, he meant slavery not as usually deployed but slavery as not yet perfected by the orator himself. In 1850, lashing out at Henry Clay’s apologetics, Jefferson Davis was a transition figure. He was somewhere between soft-hearts of the mid-1840s, with their pride that the shame of slavery could be diffused away through the safety valve, and pro-slavery reformers of the mid 1850s, with their drive to transform permanent slavery into a more benevolent system.
Henry Clay, Jefferson Davis argued in the Senate in 1850, misunderstood the South’s mission.23 The Kentucky slaveholder came “here representing those southern interests which are at stake,” and gave up “the whole claim of the South.” Clay, not nature’s God, surrendered slavery in California and New Mexico. Slaves were better miners than “any other species of labor.” So too, slave gangs could best reduce raw California “to cultivation.” But no Southerner would risk slave gangs in Mexican Cession territories while “congressional agitation” continued.
Davis especially loathed Clay’s condemnation of slavery. Such submission to insult bolstered northern claims “that the South should be restricted from further growth—that around her should be drawn, as it were, a sanitary cordon to prevent the extension of a moral leprosy.” So too, Clay’s plan for abolition in Washington would make ours a “Constitution formed for the purpose of Emancipation.” Clay would permit federal compensation for slaveholders who consented to abolition. This fatal precedent would enable the federal government to “take charge of the negroes of the United States and provide for their emancipation.” Southern minorities would be forced “to fill the Treasury, in order that it may be emptied for the purposes of abolition.”
And where were Clay’s concessions to the South? In deploying federal funds to pay Texas’s debt, thereby bribing Texans to surrender half an enslaved state? In urging a new fugitive slave law for Northerners to disobey? In asking freesoilers to forget Wilmot Provisos, so long as law and climate outlawed slavery anyway? In handling fabulous California to Yankees and thereby upsetting the senatorial balance of free and slave states?
The Union’s fate, Davis declared, was in northern, not southern hands. If Yankees desired a compromise, let the 36°30′ line be stretched to the Pacific. Slavery should be protected south of the boundary, including in southern California. But if Yankees preferred disunion, let them insist on Clay’s surrender both north and south of 36° 30′.
5
With Davis’s speech, southern congressional battlelines were drawn. Slaveholders might come to lush agricultural areas such as southern California, hoped Deep South Democrats, if government made slavery secure. Anyway, agreed most southern congressmen, Southerners must not be banned as pariahs by any law, Mexican or American. Clay’s plan for abolition in the District was anathema. His despoilment of Texas was unthinkable. His proposed laws were too Yankee to be borne.
In the face of this southern attack, Clay’s proposed package was stripped of key words and provisions. The subject of abolition in the District was altogether dropped. An amendment pushed Clay’s proposed Texas boundary way northward. The revision would restore to Texans half the land, all the then-inhabited turf, and all the enslavable river valleys Clay had wished to slice away.
While revisions of Clay’s proposals scotched possible Texas and District emancipations, slavery’s status in Mexican Cession territories was not clearly restored. Amended New Mexico and Utah bills were implicitly shorn of the Clay-endorsed Mexican ban on slavery. American law, both bills explicitly declared, would prevail on all territorial questions. But specifically on slavery, what American government’s law and when? When a territory became a state, ran the revised bills’ only explicit answer, settlers could decide for or against slavery.
That language settled nothing. Almost everyone agreed that settlers must decide at the statehood stage. Popular Sovereignty was a controversial solution to the pre-statehood, territorial stage. Southern Democrats continued to believe that territorial legislatures, by barring slave property, would violate slaveholders’ Fifth Amendment property rights. Northern Democrats continued to counter that the populace on the spot could outlaw slavery anytime. Northern Whigs continued to demand either Wilmot’s Proviso or Zach Taylor’s two free states instead of Popular Sovereignty, however defined. Those colliding attitudes forced the Great Compromiser to throw up his hands. “We cannot settle the question,” declared Henry Clay, “because of the great diversity of opinion which exists.”24
Congress had to settle for a general grant of legislative authority to territorial legislatures, with nothing specifically said about whether the authority extended to regulating or abolishing slavery. Utah and New Mexico territorial legislatures would eventually use the vague authority granted to pass specific slave codes. Those latter-day territorial innovations, not any congressional words, alone justify textbooks’ declaration that the settlement of 1850 institutionalized Popular Sovereignty in Utah and New Mexico territories. On Popular Sovereignty the Congress of 1850, like the Democratic Party of 1848, had to settle for fudge.
Congressional fudging on territorial slavery helps explain why Jefferson Davis and fellow Deep South Democrats rejected even the revised package of laws. These Southrons were glad that Clay’s affirmation of Mexican law and nature’s God had been dropped, that the District emancipation scheme had been eliminated, and that the Texas boundary had been shoved north and west of where any slave labored. The Wilmot Proviso also remained agreeably absent from the revised legislative package.
But the status of slavery and of Popular Sovereignty during the territorial stage remained a blank. Texas would be bribed to throw a still huge, albeit yet unsettled, land mass into this ambiguous realm. California would come into the Union as a free state, theoretically upsetting the North-South parity in the Senate. Why would this legislative package be acceptable to enough Southerners?
6
Because of that southern boon and northern hate, James Mason’s Fugitive Slave Bill. The Virginia senator’s bill, as amended and eventually passed, required alleged fugitives accused in the North to be extradited to the South without a jury trial, without right to a writ of habeas corpus, and with no right to testify in their own behalf. No jury trial was provided for in the South after extradition, as Henry Clay had proposed. A court-appointed commissioner would alone decide whether to extradite an accused runaway. The commissioner could summon any Northerner to serve in a fugitive-hunting posse, with a $1000 fine for noncompliance.
The commissioner’s own reward was more trivial in dollars but as controversial in form: $10 if he extradited the black to the South, $5 if he let the alleged fugitive go. Extra paperwork involved in extradition allegedly justified the extra $5. Slaveholders’ contempt for Yankee morality aside, few framers of the bill probably believed that $5 extra could seduce a Northerner to consign an innocent black to slavery. Still, the doubled payment (or pernicious bribe, as Yankees called it) for extraditing rather than freeing a black was as provocative a red herring as any American Congress ever included in an already provocative proposal.
Yankees begged Southerners to make the bill non-provoking. Northern senators wanted a jury rather than that non-judge, a commissioner, to decide on extradition. They also would allow real judges to issue writs of habeas corpus. Then northern communities would comply with the “just and reasonable” procedure for returning alleged fugitives. But an “arbitrary, oppressive” process was “much less likely to be faithfully executed.” Nor would a slave-loathing citizen tolerate being dragooned into hunting down humans who were fleeing towards freedom.25
Southern senators believed Northerners had to be dragooned. Permit Northerners to refuse to be slave catchers, Southerners scoffed, and no successful posses could be formed. Allow Yankee juries to block extradition, and no slave would be returned. Without legislation drawn to southern specifications, declaimed James Mason, “you may as well go down into the sea, and recover from his native element a fish which has escaped you.”26
This controversy showed again that both Yankees and slaveholders were democrats, but with a difference. While the racist North hardly provided colorblind justice, every accused northern black had a right to a jury trial. Southern trials of alleged slave insurrectionists, in contrast, often featured specially appointed commissioners serving as judge and jury. Forcing this non-jury procedure on the North, Yankees protested, meant condemning the accused and their offspring to life imprisonment, without judgment by their peers.
The South’s democratic despots, once again revealing their colliding mentalities, defended this anti-republican procedure in republican terms. Jefferson Davis argued that northern jury trials for southern escapees would violate the logic behind the jury system. Extradition enabled justice to be served on the spot “where the facts can best be established.” When an alleged murderer flees over state lines, Jefferson Davis asked, do you hold “a jury trial before you give up the man?” Give us back our accused, and our local neighborhoods will know whether the returned black was the alleged fugitive. A southern judge could correct neighborhood error with a writ of habeas corpus.27
Henry Clay’s proposal, southern jury trials after fugitives’ extraditions, would have made Davis’s logic unassailable.28 A Mississippian who provided juries for his own slaves might be thought amenable to the Kentuckian’s proposal. But Davis’s distinctions between appropriate and inappropriate juries for slaves, like Clay’s discriminations between “good” private slave sales and “bad” public slave auctions, illuminate again paternalistic masters struggling against their system’s anti-paternalistic tendencies.
Davis’s juries on his own plantations were in part an unusual remedy for a usual slaveholder complaint: that impersonal overseers who lashed family servants, like impersonal slave dealers who smashed slave families, mocked a personalized Domestic Institution. Davis considered juries a necessary check on nonowning overseers. But Davis denied that paternalistic owners needed juries to decide whether an alleged escapee was one of “their people.” Should a rare paternalist violate his obligation, a stray judge could issue a writ. The northern answer, that republicanism always demands writs and juries, contrasted starkly with the Davis retort, that the slaveholder as fair-minded judge made republican juries irrelevant.
Slaveholders’ argument for requiring every Yankee to be a slave-catcher also revealed differences between northern and southern regimes—and another intriguingly strained slaveholder position. Within black-belt neighborhoods, the patrol, that sometimes-preserver of communal control over Massa’s slaves, could draft any white. By wielding $1000 fines to turn Yankee posses into southern-style patrols, Southerners would impose in the North their legally sanctioned extra-legal means of adding nonslaveholder power to Slavepower.
But the very act of imposition showed how far the South had moved from federal powerlessness and a local neighborhood’s domination over its own coercive sanctions. With fugitives, as with pre-annexation Texas and as with post-annexation territorial government, slaveholders wanted federal hands heavily laid on localities, whenever necessary to sustain the Peculiar Institution.29 James Mason would deploy federal power deep inside Yankee neighborhoods, with white Northerners legally compelled to perform undemocratic process. That proposition indicated to Northerners that despotism would taint every northern citizen. Mason’s Fugitive Slave Law would swiftly surpass gag rules as proof that despotism employed against blacks required anti-republican action against whites, South and North too. The obvious question obtrudes: Why did slaveholders insist on a law so potentially destructive of northern—and southern—viewpoints?
7
Explaining southern motivation for the Fugitive Slave Law requires precision about which Southerners are being analyzed. The question is not why the South demanded. With pressure for a new fugitive law, as with most everything, no South existed. On this peculiar occasion, the usually most intransigent South was the least demanding. In the Congress of 1850, Deep South senators emphasized that this “useless” bill measured up dismally against proposed northern gains. Only a thousand or so fugitives a year successfully escaped to the North, and those mostly from the Border South. A new law, like the old edict, might not stem the small hemorrage at the fringes. James Mason’s bill, declared United States Senator David Yulee of Florida, was unenforceable in the North and worthy of “little interest.” We in the Deep South, added Henry Foote of Mississippi, are not so “interested in this matter as are those slave states which border on the free states.”30
Border senators, normally the least insistent Southerners, were the most aggressive on this subject. Kentucky, Maryland, and Virginia, the Old Dominion’s James Mason told the Senate in 1850, “have had their attention turned very closely to the subject… within the last few years.” Not many slaves had to escape before losses totaled “hundreds of thousands of dollars” annually. Senator Thomas Pratt of Maryland concurred that his state, as well as Virginia, Kentucky, Tennessee, and Missouri, are alone “interested practically in the bill.” Yet Marylanders lost an unacceptable $80,000 worth of slaves a year, and “I do not know a single case in which the fugitive has been surrendered.” While “very few” Northerners committed “this larceny,” added Senator David Atchison of Missouri, “there are enough of them” to create “serious concern … in the border states.”31
As Atchison’s phrasing indicated, border senators were not to be appeased because “only” a thousand or so constituents were annually robbed. A few thousand fugitives sufficed, moreover, to raise questions about the Border South’s fundamental order. In the most northern sections of the South, freedom was literally around the corner. Blacks who lit out for the Ohio River exemplified slaveholders’ exposure. Border states could contain group insurrections. But a slave fleeing alone took the problem of black social control to its apogee. The phenomenon had already produced Frederick Douglass, and during the Civil War, it would produce fugitives by the hundred thousands when Yankee armies invaded the Deep South. Could slavery endure where climate was blustery, masters apologetic, blacks few, and enemies close? Or must bondage, to be altogether safe, slowly drain towards the tropics? As in previous Missouri, District of Columbia, and Texas controversies and as in the imminent Kansas controversy, the overriding problem was whether slavery on the fringes could remain in place or whether the South would gradually shrink to fewer and blacker black belts. Fugitive slaves such as Frederick Douglass had forced critical abstractions upon evasive congressmen.
James Mason, designer of the Fugitive Slave Bill, lived personally with slavery’s exposure in northern hinterlands.32 Jefferson County, Mason’s turf, was at the northern extreme of the Virginia Valley. The county contained close to 30% slaves, the largest slave concentration in the Valley. Although absolute numbers of slaves in Jefferson County remained stable in the late antebellum period, relative percentage of slaves declined from 31% in 1830 to 27% in 1860.
West of Mason’s Jefferson County lay ten Virginia counties bordering Pennsylvania and Ohio. These counties’ absolute number of slaves plunged 28% between 1830 and 1850. The decrease over the next ten years would be greater still. At James Mason’s northern fringe, some slaves were being sold south, partly because other slaves were fleeing north.
Since Washington, D.C., lay between North and South, southern congressmen personally experienced northern hinterlands’ fugitive problem. Three weeks before the Senate took up James Mason’s bill, Robert Toombs’s and Alexander Stephens’s houseservants departed. Both Georgians declared that their “well treated” people had “little reason to run off.” Both learned that gun wounds had to be inflicted before their Cuffees “consented” to come “home.” Both embarrassed Massas made scapegoats of Yankees who had allegedly helped the slaves escape. Both concurred with North Carolina’s ultra-unionist Congressman David Outlaw that “it is abominable, that at the seat of the common government, a portion of the Representatives cannot have their domestic servants, without losing them.”
Northern “stealing of slaves,” Outlaw wrote to his wife, “furnishes more material for agitation than anything else, because it is a practical evil which we suffer, and a palpable wrong which the North commits, which comes home to the business and bosoms of men.”33 If fury at Washington’s supposed kidnappers made Outlaw’s letter a momentary exaggeration, the Fugitive Slave Law came out of the same moment. Both the letter and the law demonstrated that an abstraction presses harder on lawmakers when it explodes in their little circle.
8
With more northerly Southerners for once intransigent about a slavery problem, more southerly Southerners for once felt compelled to support a Border South demand. Southern union, however, swiftly soured. Southerners lit into each other so angrily on terms of the fugitive bill that Mississippi’s exasperated Senator Henry Foote wondered whether slaveholders would “suffer eternally” from “discordant opinion and conflicting actions.”34
This renewed discordance between Border and Deep Souths broke out over what seems at first glance an innocent enough—indeed a highly statesmanlike—proposal. Senator Thomas Pratt of Maryland moved an amendment to Mason’s bill on August 20, 1850. Since the federal government was constitutionally obligated to enforce a fugitive slave law, Pratt reasoned, the federal government should compensate a master when northern hostility blocked return of a fugitive.35
While the $5/$10 “bribe” to commissioners was the most unnecessarily provocative aspect of the eventual fugitive law, Pratt’s proposal may well have been the ideal cure. Armed with the Pratt Amendment in the 1850s, federal officials might have dampened northern rage, by not pursuing fleeing slaves within resisting Yankee communities. They could then have eased southern anger, by providing compensation for lost slaves. Pratt prayed that all southern senators “would upon this question (although they have upon no other) been found shoulder to shoulder.”36
No way! Too many senators from the Deep and Middle Souths distrusted the Border South too much. The Pratt Amendment, charged Senator Hopkins L. Turney of Tennessee, was intended “to emancipate the slaves of the Border South, and to have them paid for out of the Treasury of the United States.” The Tennessee senator believed that Marylanders and Kentuckians “would gladly emancipate their slaves, especially if they could be compensated for them.” Pratt’s scheme, according to Turney, invited border state residents to tell slaves to flee. Apologists would thereby free their blacks, whiten their region, and enrich themselves! Worse, exclaimed Andrew Butler of South Carolina, “dishonest masters” might encourage “their slaves to run away, so that they might thus obtain an overrated value for them.” Butler gloomed that “some enthusiasts would hail with thanksgiving” this “mode of emancipation.”37
Senator Joseph Underwood, Henry Clay’s colleague from Kentucky, answered by conceding that “many” Kentuckians wish slavery had never “existed among us.” Furthermore, “many” Kentuckians “are anxious to get clear of it.” But only “a very small minority,” bragged Underwood, would accept emancipation without race removal. While blacks stay, the Kentucky white would remain “the most ultra southern man you can find on the face of the globe.”38
Jefferson Davis answered that Thomas Pratt would give Joseph Underwood all requisite conditions for deserting the South. Kentucky blacks would abscond, and the federal government would pay whites to allow the whitening process. Permit the federal government to “interpose its legislative and financial power” between the slaveholder and his property, and “where shall we find an end to the action which antislavery feeling will suggest?”39
When voting time on the Pratt Amendment came, almost half the northern senators abstained on this war within the South. The other half of Yankee senators voted against federal bounties for fugitives’ owners. Yankee abstentions gave southern senators ability to pass Pratt’s bounty in the Senate, assuming they voted strongly enough together. The Upper South rallied 6–3 for Pratt. The Lower South turned him down 8–4.40 With fugitive slaves, as with Henry Clay’s initial package, Deep South senators stood guard against all hints of Conditional Termination.
9
Deep South senators’ attempt to salvage a piece of California revealed again a South divided against itself. The Nashville Southern Convention had called the opportunity to secure half the Mexican Cession an acceptable alternative to the Wilmot Proviso’s bar on slaveholders. Jefferson Davis repeated the equal division formula when taking on Henry Clay.
Davis’s Mississippi colleague, the quirky and less intransigent Henry Foote, sought slightly less for the South when the bill admitting California came to the Senate floor. Instead of the Southern Convention’s and Davis’s 36°30′ dividing line, Foote moved that California be divided at the 35°30′ line, approximately 60 miles further south, about at the level of Bakersfield.* Below the 35° 30′ boundary, Foote proposed that a new territory, to be called Colorado, should stretch to the sea. Southern migrants might then implant slavery along the southernmost third of the California coast.41
The Foote Amendment, if passed, just might have produced an enslaved coastland. The land was rich enough; in the twentieth century, much cotton would be raised in southern California. Some state judges were sympathetic enough; state courts in free California in the 1850s would stall on freeing the few slaves imported during the territorial phase. Some inhabitants were willing enough; in the late 1850s, Californians in the southern half of the state would urge fracture of the commonwealth, in part so they could have slaves. Northern Californians would agree to let their erring brothers depart and form a slaveholders’ state. The division of California would be pending in Congress when the Civil War commenced.42 In the Golden State, as in Edward Coles’s Illinois a quarter-century earlier, entrepreneurs would seek a despotism that law, not climates, deterred—and a despotism that democratic courts, despite the law, sometimes allowed.
In 1850, Deep South senators massed behind Foote with the section’s most defiant words: give us our shot at California, or we may quit the Union. The Georgia legislature had proposed a state secession convention, should slavery be banned from Mexican lands. Barring slavery from all of California, declared a Georgia senator, would invite that secessionist conclave—and, worse, an assembly of South Carolina hotheads.43
The Deep South’s least favorite senator scoffed at this ultimatum. Southerners who threatened secession unless California was divided, warned Henry Clay, did not speak for his South. Clay was striving to wring Union-saving concessions out of Yankees in exchange for southern acquiesence in free California. If irresponsible Southerners demanded their golden hills, farewell to union. Then, swore Clay, even “if my own state … contrary to her duty, should raise the standard of disunion,… I would go against Kentucky.”44
I would go against Kentucky. No antebellum Southerner ever emitted a more revealing sentence. If the Deep South seceded to secure California, the Border South’s hero would go with the North. And Henry Clay’s border followers? They stood with Prince Hal against the Mississippi land pirate. One Yankee abstained in the eventual roll call on the Foote Amendment. The Yankee abstention gave a unanimous South the ability to win on California in the Senate. Lower South senators provided the needed unanimity for keeping Henry Foote’s California maneuver alive. But the Border South voted against slicing off the southern third of California, 4–3, with one abstention. Another pair of Middle South senators abstained. Southern division had defeated the Southern Convention’s pet proposition.45
The proposition probably had not long to live anyway. As usual, no southern law could pass the House without Northern Democrats’ help. Yankee appeasers on California would have seemed especially atrocious slaves of the Slavepower. A unanimous southern ultimatum for golden hills would have likely produced civil war right then and there.
No unanimous South was going to appear, for Henry Clay’s South stood with the North. Not since Missouri times, when the Border South had voted for free soil in Louisiana Purchase territory north of 36°30′, had a southern minority been so determined to endorse the Yankee majority’s gain. Not since 1844–5, when Southern Whigs in the Senate had come close to defeating annexation, had southern division seemed so deadly. Now, in the senatorial vote on Foote’s California Amendment, the most northern South for the first time cast the decisive votes against the most southern South, and thereby raised the largest question yet about a South.
10
After the Senate settled details of fugitive slave and California bills in late August, voting time on the revised version of Clay’s proposals arrived. Clay had initially favored separate votes on each bill. But Henry Foote had convinced the Kentuckian to unite all proposals concerning the Mexican Cession in a so-called Omnibus Bill, to be voted up or down together. Sufficient Northerners would never vote to drop the Wilmot Proviso from New Mexico and Utah territorial bills, went the reasoning, unless the same vote secured free California. Nor would Southerners vote yes on free California, unless their affirmation also scotched the Proviso in Utah and New Mexico.
In pursuing Foote’s Omnibus strategy, Henry Clay became a leader without constituents. Deep South senators had spent the session calling the Great Compromiser the slaveholder who sold out. They would vote no on any Omnibus admitting free California. Meanwhile, almost all Northern Whigs echoed their 1840 opinion that Henry Clay, of all people, was too southern. A proper Omnibus, they insisted, must ensure free soil throughout the Mexican Cession.
With Northern Whigs and Deep South Democrats both denouncing Clay’s Omnibus, sectional extremes might overwhelm compromisers in a single vote on the parcel. Fearing that setback, Maryland’s Whig Senator James Pearce, a Clay admirer, moved removal of the New Mexican territorial bill from the Omnibus Bill. Pearce prayed that some portion of the Compromise would thereby become acceptable to some majority. A momentum for settlement might then build.
Henry Clay, despite his apologetic slaveholder mentality, could be the dictatorial master when crossed. John Tyler had learned that all too well. The defeated Kentuckian, dreams of driving a last historic compromise through Congress shattered, now could not flexibly switch tactics. No matter that the newest ploy, separate bills, was his strategy before Foote convinced him to go for an Omnibus. Clay still blasted James Pearce. To no one’s sorrow, the Great Compromiser then left Washington for a much needed rest. He was not destined to return until others had piloted “his” settlement to senatorial victory.
The leading pilot turned out to be not an old Whig but a newly important Democrat, Senator Stephen A. Douglas of Illinois. In seeking to mass his National Democratic Party behind a national adjustment ever becoming less “Clay’s,” Douglas expanded on Pearce’s strategy. The Illinois Democrat would secure a favorable vote on each segment of the now-unraveled Omnibus. That strategy had saved the Missouri Compromise, ironically with Clay’s blessings.”
Douglas saw that senatorial majorities existed for each piece of the Omnibus. In a Senate evenly divided between the two sections, the North needed only one southern deserter or abstainer to pass the bill admitting free California. Likewise, the South needed only one abstaining Yankee to secure a juryless fugitive bill and to defeat the Wilmot Proviso in Utah and New Mexico. Douglas secured turncoats in the usual places. Southerners voting the North’s way on California included most Border South senators and Sam Houston. Meanwhile, Northerners voting the South’s way on juryless fugitive slave extradition and on an ambiguous status for slavery in Utah and New Mexico territories were almost always Northern Democrats. In the Senate, the Democratic Party had again supplied the power for a not-so-democratic Slavepower law and had again left its Popular Sovereignty formula deliberately vague.47
11
National Democratic Party strategists in the House of Representatives faced a more difficult test of Douglas’ separate bill ploy. The Democratic Party controlled 55% of the Senate but only 48% of the House. Worse, the South commanded 50% of the Senate but only 40% of the House.
The theoretically hardest House majority to fashion, a plurality for the 40% minority’s fugitive slave bill, ultimately swelled to surprisingly large proportions, 109–76. Every voting southern congressman said aye; for once, a South existed. But the South triumphed for the more usual reason: Northern Democrats, when needed, swallowed their resentment and aided the slaveholders. The Democracy’s Yankee wing voted 27–16 for Mason’s juryless fugitive slave bill. As usual, Upper North Democrats were least accommodating to the South, voting 7–6 aye. Lower North Democrats massed behind southern colleagues, 2010. Only three of 74 Northern Whigs voted for the South’s favorite bill. In all, northern representatives voted 70% nay. Northern Democrats, caring more about party and Union than about their section’s preferences, again gave the minority section its national majority.
Majorities were hardest to attain on the Texas land-for-debt bargain and on the ambiguous status for slaves in New Mexico and Utah territories. More intransigent Northerners wanted to pay nothing to a Texas stripped of its New Mexico land claim. They also wanted to bar slavery in the resulting maximum-sized New Mexico territorial domain. More intransigent Southerners wanted enslaved Texas to keep its entire land claim. They also wanted slavery guaranteed in the resulting minimally sized New Mexico territory.
The key test of whether the American middle would hold against these sectional extremes came on a so-called Little Omnibus Bill, combining the bribe for Texas shrinkage with nondecision on slavery in New Mexico Territory. Upper South Democrats voted 2:1 and Northern Democrats 3:1 yes on the package. Northern Whigs voted 2:1 and Deep South Democrats 3:1 no. Only Southern Whigs could offset the Deep South Democrat/Northern Whig negation and thus save the Little Omnibus and the ultimate national settlement. Southern Whigs went for the Little Omnibus, 24–1, allowing it to squeak through, 108–97.48 That vote paved the way for the revised version of Clay’s proposals to slide through the House and into the statute books.
The saviors of the Little Omnibus were the largest potential losers from the compromise. Southern Whigs secured a national settlement based on a new fugitive slave law and without the insulting Proviso. Northern Whigs scorned that goal. Northern Democrats helped gain it. Southern Whigs’ best allies were in the other party. That was a demoralizing burden to carry into the next southern two-party campaign.
Emphasis on Southern Whigs as saviors (and victims) of compromise misses an equally revealing point: the most northern South salvaged the nation. Eighty percent of saving Southern Whig votes came from the Upper South and almost half from the Border South. Border South Democrats were almost as unanimous for the Little Omnibus as were Border South Whigs. The whole nation outside the Border South voted 96–89 against the Little Omnibus. The Border South saved the Little Omnibus and thus national settlement with its 19–1 affirmation.
The Border South’s far greater willingness to bend northward received another statistical illustration in the House vote on the North’s greatest gain: free California. In the evenly divided Senate, northern victory on California had required at least one southern abstention. In the northern-dominated House, no Southerner had to endorse the victors’ spoils. Still, 64% of border congressmen voted to admit California as a free state. Only 27% of the Middle South’s representatives and 2% of the Lower South’s concurred.
12
The House’s Little Omnibus and California votes climaxed differences which had pitted Deep South against Border South from the moment Clay introduced his proposals. That internal southern strife, while no longer all-out war after the alteration of Clay’s initial package, had never yielded a settlement satisfying to both extremes of the South. On Henry Foote’s provocative southern chance for California and on Thomas Pratt’s soothing bounty for unreturned fugitives, Border and Deep Souths, distrustful in the extreme about each other, barely agreed to an armistice.
Armistice remains the best word for the entire settlement of 1850. In a true compromise, both sides give in a little, concur on mutual concessions, and coalesce to make their agreement work. In the so-called Compromise of 1850, only moderates lived up to the meaning of compromise. The most accommodating Northern Democrats, especially those from the most southern North, came to agreement with the most accommodating Southerners, especially those from the most northern South.
Outside this compromising middle, zealots dismissed any obligation to make other people’s armistice work.49 Northern Whigs cast only 37 of a possible 261 congressional votes for the Utah, New Mexico, and fugitive slave bills. These anti-Slavepower Whigs felt free to nullify the Slavepower’s “immoral” fugitive slave law. Meanwhile, South Carolina cast only one of a possible 34 congressional votes and Mississippi only three of a possible 26 votes for the moderates’ settlement, outside of the fugitive slave part. Many of these southern naysayers felt free to secede from other Southerners’ “sellout.”
“Compromise” or “Armistice” or “Sellout,” call this settlement what you will, it everywhere failed to defuse explosive questions. The Democrats’ uniting principle, Popular Sovereignty, had passed only after being rendered provokingly vague. Could Southern and Northern Democrats continue to agree to disagree on which territorial populace had sovereignty and when? The National Whig Party’s uniting principle, No Territory, had proved beyond Zachary Taylor’s power to save. With not even a motto left and with Northern Whigs’ intransigence leaving Southern Whigs vulnerable to loyalty politics at home, could any national opposition to the Democratic Party endure? Border Southerners’ ideologies and actions had again and again hinted that they paid partial allegiance to David Wilmot’s vocabulary. Would the Henry (and Cassius) Clays constantly seek out Wilmot Proviso Northerners, unless continually deterred?
Before any of these long-run questions could be answered, an immediate crisis had to be faced. South Carolina secessionists were surpassing their own world-class standards in ranting about sellout. This time, they swore, they would revolt rather than submit. The Armistice of 1850 might not even temporarily prevent disunion.