A History of the American People

horrific. But when what was eventually to become California, which had always been slave-free,
was acquired in 1848, and some of the freebooters who were seizing power there proposed to
make it a slave state, the Northern conscience was powerfully aroused. When President Polk
submitted a money Bill to the House, asking for funds to make peace with Mexico (in effect to
bribe Santa Ana), a Pennsylvania congressman, David Wilmot, added an amendment stipulating,
and using the language of the Northwest Ordinance, that in any territory so acquired neither slavery nor involuntary servitude shall ever exist.' Furious, Polk got his friends to table a counter-amendment, proposing that the Old Missouri Compromise line, running at latitude 36.30, should be extended and divide freedom and slavery in the new territories, as in the old. But the moderates who would have voted for this were denounced as traitors in the South or as Doughfaces (Northerners with Southern principles) in the North. So both were voted down by extremists. Wisconsin got statehood in 1848 with a free constitution, but Polk left office with the issue unresolved in Utah, New Mexico, and California. From the so-called Wilmont debates, new principles emerged. The first was that Congress had the right to ban slavery wherever its jurisdiction extended-freedom was national, slavery only sectional. That was an important step forward. Both the Free Soil and the Republican Parties were later formed to enforce this doctrine. On the other hand, the Southerners also put forward a new doctrine: not only did Congress have no right to prohibit slavery in the territories, it had a positive duty to protect it there, once established. Calhoun now produced a new theory, reversing the constitutional practice of the past sixty years: newly acquired territories belonged tothe
states united,' not to the United States. Congress, he argued, was merely the Attorney to a Partnership' and every partner had an equal right to protection of his property on his territory. He denied that Lord Mansfield's 1772 ruling on slavery in England applied in America, where slaves werecommon law property.' To be sure Congress had prohibited slavery north of 36.30 in 1820-
but that was unconstitutional. Slavery followed the United States flag, automatically, wherever it
was planted. This doctrine was embodied in resolutions adopted by the Virginia legislature in
1847, later known as the `Platform of the South.'
It also became the doctrine underlying the Supreme Court's fateful decision in the Dred Scott
Case in 1857. Describing this takes us a little ahead of the California issue, but it is important to
get its implications clear now. Scott was a Missouri slave who was taken (1834) by his master to
places where slavery was prohibited by law. In 1846, Scott sued for his freedom in the Missouri
courts, arguing that his four-year stay on free soil had given it to him. He won his case but the
verdict was reversed in the state supreme court. He then appealed it to the federal Supreme
Court, and Taney and his colleagues again ruled against him, for four reasons. First, since Scott
was a negro and therefore not a citizen, he could not sue in a federal court. Second, as he was
suing in Missouri, what happened in Illinois, under its law, was immaterial. Third, even so,
Scott's temporary sojourn on free territory did not in itself make him free. Fourth, the original
Missouri Compromise was unconstitutional since it deprived persons of their property (slaves)
without due process of law and was therefore contrary to the Fifth Amendment. The Dred Scott
ruling became of critical importance in the events leading up directly to the Civil War, which we
will examine later. Here, it is enough to say that its reasoning followed, and gave constitutional
legitimacy to (or appeared to do so), Calhoun's case. However, at this point it is important to
remember one thing. Neither Congressman Wilmot nor Senator Calhoun regarded himself as
extremist. Both thought they were putting forward defensive strategies, preemptive strikes as it
were, to ward off aggression by the other side. And it is true that there were many more extreme