Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
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WILMOT PROVISO (IN U. S. HISTORY). Although this principle has been baptized with the name of David Wilmot, a democratic congressman from Pennsylvania, who attempted to apply it in 1846 to the territory about to be acquired from Mexico, it is in reality the outcome of that principle of congressional control over the territories which has constantly been applied in practice since the nation first owned territories. The ordinance of 1787 (see that title) prohibited slavery in the northwest territory; and in the territory southwest of the Ohio the prohibition of slavery was not imposed, because congress, in accepting the cessions of it by the states, had voluntarily bound itself not to do so. In the organization of the territories, while congress has allowed the election of the lower house of the legislature by the people, it has always retained to the national government the appointment of the judges and of the governors, with a veto on the territorial legislatures, and has even retained a power to veto, in the last resort, the action of territorial governors and legislatures together. Its power to prohibit polygamy and slavery in the territories has always rested on exactly the same foundation. (See TERRITORIES.) In the case of slavery it would probably never have been denied, but for the influence occasioned by the growth of slavery. Jefferson's prohibition of slavery in both the northwest and southwest territories came within a hair's breadth of success in 1784; and the more limited prohibition of 1787 had practically no opposition. In the case of Missouri, in 1819-20, there was hardly any denial in the south, while there was a unanimous affirmation in the north, of the power of congress to prohibit anything in the territories, even slavery. The southern argument was altogether different from any such denial. It showed that the national government had acquired the territory west of the Mississippi, when slavery was permitted therein by law; that it had taken no steps whatever to prohibit slavery therein, but had allowed it to extend north through Missouri; and that, when Missouri had thereby become a slave state through the continued policy of congress, confirmed by the admission of Louisiana as a slave state in 1812, it was not just, by a sudden reversal of policy in the case of Missouri, to destroy property rights which congress, at least by laches, had allowed to grow up. Leaving out of question the morality of slavery, the southern reasoning was just, and indeed, mutatis mutandis, was exactly the reasoning of the free-soilers of after days. In 1820 (see COMPROMISES, IV.), congress recognized its justice: it refrained from touching slavery in that part of the annexation where it had been allowed to grow up, in the states of Louisiana and Missouri, and in the territory of Arkansas; but it took absolute assurance for the future by prohibiting slavery forever in the rest of the annexation, that part lying north of latitude 36°30'. The mistake lay in allowing this to go forth as a compromise, a bargain, a division of territory between the sections, instead of a plain exercise of rightful power by congress, coupled with an act of condonation for the past. There could then have been no attempt to stamp the Wilmot proviso in 1846 as a novelty in American legislation.


—I. BEFORE ANNEXATION. Prohibitions of slavery were inserted in the organization of the new territories formed from the Louisiana purchase, Iowa in 1838, and Minnesota in 1849, by the following provision: "The laws of the United States are hereby extended over and declared to be in force in the said territory, so far as the same, or any provision therefore, may be applicable." The prohibition of slavery therein, passed in 1820, thus attached to them as organized territories. It was very doubtful whether Oregon was really a part of the Louisiana purchase (see NORTHWEST BOUNDARY), and for greater safety an explicit prohibition of slavery was inserted in the first house bill to organize the territory. In this form the house passed the bill, Feb. 3, 1845, by a vote of 140 to 59. Pending difficulties with Great Britain made the organization of the territory at that time a matter of doubtful prudence, and it was not considered by the senate until after the treaty of June 15, 1846.


—All parties who voted for the annexation of Texas did so with a silent recognition of slavery therein, as established by local law. But the remainder of the Mexican republic was absolutely barred to slavery, at first by a decree of the dictator Guerrero in 1829, and then by the constitutions of the Mexican republic. If, then, any portion of it should be annexed to the United States, it would come in as free territory, just as all other acquisitions had been slave territory when acquired. Early in the Mexican war an arrangement seems to have been made by the administration with the banished Mexican president, Santa Anna, by which he was to be allowed to return to Mexico, reorganize his party, and conclude a peace on the basis of a payment by the United States for a cession of territory. Aug. 8, 1846, in a special message, the president asked for the appropriation of a sum of money for "the adjustment of a boundary with Mexico such as neither republic will hereafter be inclined to disturb," that is, for the purchase of Mexican territory outside of Texas. Such a bill, appropriating $2,000,000, was at once introduced in the house, and debate was limited to two hours. Northern and southern whigs were alike opposed to any acquisition of territory, for fear of introducing with it the question of slavery: and White, of New York, and Winthrop, of Massachusetts, now expressed their party's views clearly and forcibly. Most of the northern democrats, while determined on acquisition of territory, were equally determined that it should remain free. Brinckerhoff, of Ohio, at once drafted, and Wilmot introduced, the amendment afterward famous as the "Wilmot proviso," as follows: "provided that [as an express and fundamental condition to the acquisition of any territory from the republic of Mexico by the United States, by virtue of any treaty which may be negotiated between them, and to the use by the executive of the moneys herein appropriated] neither slavery nor involuntary servitude shall ever exist in any part of said territory, except for crime, whereof the party shall first be duly convicted." The words in brackets were not essential, except under temporary circumstances, and the remainder forms the Wilmot proviso proper, as it is usually cited. It followed the language of the ordinance of 1787.


—Remarkably little opposition was made to this first appearance of the proviso, and that little came from southern democrats who alleged that the territory in question was already free; that the proviso was thus needless; and that it was also mischievous, as a piece of supererogatory and offensively anti-southern legislation, which would provoke the election of extreme southern representatives and endanger the Union. This view will be found best stated by Benton, as cited below, and he himself was one of the first victims. (See MISSOURI.) The proviso was quietly accepted: the house decided it in order by a vote of 92 to 37, and adopted it (83 to 64) and the whole bill (85 to 79) on the day of its introduction. Two days afterward, on the last day of the session, the senate voted, 19 to 10, to take up the bill for consideration. Lewis, of Alabama, moved to strike out the proviso. Davis, of Massachusetts, argued against the motion, and persisted in his argument until the time fixed for adjournment came, and he was cut off in the full flow of debate. The proviso thus fell with the bill. It was claimed at the time that it would have been passed by the votes of all the free-state senators, and those from Delaware and Maryland; but Wilson makes a very convincing showing that it would have been voted down. Nevertheless the denunciations of Davis' action in democratic newspapers and in the "Union," the official newspaper at Washington, were far more severe than in those of their opponents. Cass, in conversation, censured Davis severely. Polk, in his message of the following December, without any condemnation of the proviso, expressed his regret that the bill had not passed, and his confidence that a majority of both houses was still in favor of it. The legislatures of every northern state east of Indiana, excepting Maine, but including Delaware, formally approved the proviso, democrats and whigs uniting in the vote. Everything seemed to point to its passage, as a democratic measure, at the following session.


—Before the following session the southern members had been naturally forced into an attitude of stronger opposition to the proviso. Every southern aspirant to a seat in congress was certain to represent the sitting member's active or passive support of the proviso as an act of treason to the south; and thus all the southern democrats, who desired an acquisition of territory, were arrayed against the proviso. Southern whigs, who were against the acquisition, could safely vote against the proviso with its bill, and could carry enough northern whigs with them on that issue to preserve the national integrity of their party. How were northern democrats to keep their party intact? This pressing question was answered by the evolution of the new dogma of "popular sovereignty" (see that title) in the territories, by virtue of which the status of slavery in any territory was to be remitted to the decision of the people of the territory. Urged at first as a prudent way of settling the difficulty, it almost immediately became the touchstone of democracy, and Wilmot and democrats who supported him were driven out of the party.


—Jan. 4, 1847, in the house, Preston King, of New York, asked leave to offer a bill like that of the previous session, changing $2,000,000 to $3,000,000, but adding the proviso. Before it could be considered, bills of like nature, but without the proviso, had been reported in both houses. In the senate the southern whigs unsuccessfully tried to add a prohibition of any purchase of territory; and the bill, without the proviso, passed March 1. In the house the proviso was moved by Wilmot as an amendment, Feb. 8, renewed by Hamlin, Feb. 15, and adopted by a vote of 115 to 106. Douglas unsuccessfully trying to restrict it to territory north of latitude 36° 30'. March 3. in the house, the proviso was added to the senate bill in committee of the whole by a vote of 90 to 80, but rejected on the report of the committee (97 to 102); and the bill, without the proviso, was finally passed (115 to 81).


—In the meantime, a bill to organize Oregon territory, with a provision that the inhabitants should enjoy all the privileges, and be bound by all the prohibitions and restrictions, of the ordinance of 1787 (which prohibited slavery), was passed by the house, Jan. 16, 1847. But Oregon was now to be linked in, for a time, with the territory to be annexed; and the senate, after twice committing the bill, laid it on the table, March 3.


—II. AFTER ANNEXATION AND BEFORE COMPROMISE. Before any further measures could be attempted at the next session, peace had been concluded, Feb. 2, 1848, and the great territories of California and New Mexico (see ANNEXATIONS, IV., for their extent) had been transferred to the United States. The fact of possession greatly changed political conditions. Southern democrats simply continued to oppose the proviso; northern democrats now opposed it by force of the doctrine of popular sovereignty; and southern whigs, who had opposed it together with the $3,000,000 bill, on account of the acquisition of territory, found little difficulty in continuing the opposition after annexation. In short, the proviso had now no friends in congress, excepting a part of the northern whigs and the few remaining Wilmot democrats. Only the imminent presidential election of 1848, and the unknown possibilities of a northern free-soil uprising, prevented the organization of the territories, without the proviso, in the spring of 1848; and the lost opportunity was not easily regained.


—May 29, 1848, the president called the attention of congress to the pressing necessity of organizing Oregon territory; and the necessity was emphasized by the fact that the popular provisional government (see OREGON) had begun to make laws forbidding slavery. The necessary bill, which Douglas had reported, Jan. 10, was at once brought up; Hale offered as an amendment a section imposing the prohibitions, as well as the privileges, of the ordinance of 1787; and debate continued until July 12. A select committee of eight was then chosen, and it reported, July 18, a bill in thirty-seven sections, commonly known as the "Clayton compromise," from the chairman of the committee, organizing the territories of Oregon, California and New Mexico together. No power was given to the territorial legislatures to legislate on slavery, and questions of its legality or illegality in any particular territory were to be decided by the territorial courts, with a right to appeal to the United States supreme court. In this form the bill was passed, July 26, but the house laid it on the table by a vote of 112 to 97, and it was never revived. The majority was made up of seventy-four northern whigs, thirty northern democrats, and eight southern whigs. Aug. 2, the house passed an Oregon bill, with the section relating to the ordinance of 1787. Aug. 10, the senate passed it with an amendment declaring the Missouri compromise line to extend to the Pacific, and to be binding in all future organizations of territories: and on the following day the house non-concurred. Aug. 12, the senate receded, passed the bill as it originally came from the house, and Oregon was a free territory. The secret of the senate's action was in the Buffalo convention three days before, and the nomination of candidates pledged against extension of slavery. (See FREE-SOIL PARTY.)


—The southern leaders were doubly embarrassed at the meeting of congress in December, 1848. The discovery of gold in California, Jan. 19, 1848, was increasing the population so rapidly that a state government would soon be even more necessary than a territorial government; and the mass of northern democrats in congress were so thoroughly provoked by Taylor's election through southern electoral votes as to be ready even for the proviso. Nothing could have postponed the proviso but the shortness of the session, and the still controlling influence of the south in the senate. Congress had hardly organized, when the house, Dec. 13, by a vote of 108 to 80, instructed the committee on territories to bring in territorial bills for California and New Mexico, "excluding slavery therefrom." The committee, one week later, reported the California bill, but it was not reached until Feb. 26, 1849. The next day it was passed by a vote of 126 to 87, almost exactly sectional. The New Mexico bill was reported Jan. 8, but was not reached. In the senate the California bill was referred, but never considered, and the committee was discharged, March 3. In place of it, an unsuccessful attempt was made to tack a senate bill to the appropriation bill. (See RIDERS, II.) At the adjournment the territories were still left unorganized.


—No one, as yet, denied the right of the people of a territory, when forming a state constitution, to prohibit slavery; and the new administration (Taylor's) at once undertook to solve the problem by procuring the formation of state governments in both California and New Mexico. In both of these the Wilmot proviso was a part of the state constitution. This forced the further proceedings into a new line, which is detailed elsewhere. (See COMPROMISES, V.) In reviewing the whole current of events, at the close of September, 1850, it will appear that the object of the proviso, the prohibition of slavery, had been successfully attained in all the territory outside of the Louisiana purchase, except the modern state of Nevada, and the territories of Utah, New Mexico and Arizona (then included in New Mexico); and that, as to the excepted portions, the Mexican laws abolishing slavery therein had never been interfered with by American laws. But the struggle over the Wilmot proviso, which was essentially only a declaration of the existing law of the territories, was a very sufficient warning that some influence was at work, which would resist any such declaration for the future. This was the doctrine of Calhoun, that the constitution's guarantee of security to property covered the territories also; and that congress was bound to enforce it in the case of slave property, as well as other property. The objection now seems insuperable that the slaves were always referred to as "persons" in the federal constitution, and as "property" only in state constitutions and laws, which could have nothing to do with the territories But at the time Calhoun's doctrine fell in too closely with southern feeling to be resisted. It was adopted, openly by some, tacitly by others, and the comparative strength of the former class steadily increased. Calhoun's resolutions of Feb. 19, 1847, protesting against discrimination in the territories against any state, were the first, though vague, expression of the doctrine, and their effect was seen in the unanimous resolutions of the Virginia legislature, March 8, following: 1, that such a discrimination was in violation of the compromises of the constitution; 2, that it was to be "resisted at every hazard"; and 3, that, in the event of the passage of the Wilmot proviso or any law abolishing slavery or the slave trade in the District of Columbia, the governor should immediately convene the legislature "to consider of the mode and measure of redress." As the proviso discussion went on, the southern tone grew still warmer; and at the time of the final compromise most of the southern states had statutes or resolutions in existence directing the governor to call a popular convention in the event of the passage of the proviso. (See SECESSION, II.)


—III AFTER THE COMPROMISE. The general ratification of the compromise of 1850 seemed at first to have put an end to the desire for the proviso. When was it to be applied? California was a free state, and the territories had been completely organized, those acquired under the Louisiana purchase having the proviso under the Missouri compromise, and those acquired under the Mexican purchase merely ignoring it. Not content to let well enough alone, the northern democratic leaders, in 1854, attempted to apply the "popular sovereignty" principle to the new territories of Kansas and Nebraska, formed from the Louisiana purchase (see KANSAS NEBRASKA BILL), and thus to wipe out the proviso when it was already established by law. The attempt naturally revived the proviso on a far stronger ground. It was now an evidently conservative effort to reapply to the Louisiana purchase the prohibition which had been its organic law from 1820 until 1854; and it thus secured a breadth of support greater than it could have obtained in 1849-50, and became the basis of a great northern party. (See REPUBLICAN PARTY, I.) But of course the new party could not be content to limit the assertion of the proviso to the Louisiana purchase: law for one territory was law for all, for Utah and New Mexico as well as for Kansas and Nebraska; and thus the work of 1850 was to be done over again, with no chance now for compromise. In 1857 the supreme court decided that the proviso had always been unconstitutional in the case of any territory (see DRED SCOTT CASE); but this had little effect on the supporters of the proviso. They still asserted the right of congress to impose a prohibition of slavery upon the territories, disregarding the obiter dicta of the supreme court, and leaving the constitutional question to be decided by the court when the case should come directly before it. Against this permanent programme a bald negative was but a poor reliance; the south was compelled to choose between admitting the validity of a prospective prohibition, or taking Calhoun's extreme ground of the duty of congress to protect slavery in the territories. It chose the latter (see DEMOCRATIC PARTY, V.), its ultimatum being expressed in Jefferson Davis' senate resolutions of May 24-25, 1860. The most important of these, in this connection, were the fourth and fifth; as follows: "4, that neither congress nor a territorial legislature, whether by direct legislation or legislation of an indirect and unfriendly character, possesses power to annual or impair the constitutional right of any citizen of the United States to take his slave property into the common territories, and there hold and enjoy the same while the territorial condition remains; 5, that, if experience should at any time prove that the judicial and executive authority do not possess means to insure adequate protection to constitutional rights in a territory, and if the territorial government should fail or refuse to provide the necessary remedies for that purpose, it will be the duty of congress to supply such deficiency." At least a part of these resolutions was explained by a territorial law of New Mexico, in 1859, establishing slavery. It was disapproved by the house of representatives, but the senate did not act on the veto bill, so that the territorial slave law remained in force. On the contrary, the eighth resolution of the republican platform in May, 1860, declared "that the normal condition of all the territory of the United States is that of freedom; that, as our republican fathers, when they had abolished slavery in all our national territory, ordained that no person should be deprived of life, liberty or property without due process of law, it becomes our duty, by legislation, whenever such legislation is necessary, to maintain this provision of the constitution against all attempts to violate it; and we deny the authority of congress, of a territorial legislature or of any individuals, to give legal existence to slavery in any territory of the United States." The issue was thus fairly made up on both sides: all or nothing. The republican programme was indorsed by Lincoln's election, and secession and war followed. (See SECESSION. III.; REBELLION.)


—IV. FINAL ESTABLISHMENT OF THE PROVISO. The withdrawal of southern senators and representatives left the republicans in a majority in both houses of congress before the end of the session of 1860-61; but they made no attempt to enforce the eighth section of the Chicago platform. The propositions of Crittenden (see COMPROMISES, VI.), and of the peace congress (see CONFERENCE, PEACE), both of which aimed to forbid the future application of the Wilmot proviso to territory south of latitude 36° 30', were rejected; but, on the other hand, the territories of Colorado, Dakota and Nevada were organized without the Wilmot proviso, in entire silence as to slavery, and therefore with all the benefits to the south of the Dred Scott decision. Slavery in the territories remained undisturbed until 1862, immediately after its abolition in the District of Columbia, April 16. (See ABOLITION. III.) In the house, March 24, a bill was introduced "to render freedom national, and slavery sectional," and was referred to the committee on territories. It was reported, May 1, recommitted, and again reported, May 8. It was now a bill to prohibit slavery in the territories, in federal forts, dockyards, etc., in vessels on the high seas, in national highways, and in all places where the national government had exclusive jurisdiction. It was debated until May 12, when it had been modified into a simple prohibition of slavery in the territories, and was then passed by a vote of 85 to 50. In the senate, June 9. its language was slightly changed to the following: "that, from and after the passage of this act, there shall be neither slavery nor involuntary servitude in any of the territories of the United States now existing, or which may at any time hereafter be formed or acquired by the United States, otherwise than in punishment of crime, whereof the party shall have been duly convicted"; and it was then passed (28 to 10). June 17, the house concurred (72 to 38); and the bill became law, June 19. It was never brought before the supreme court, in order that its constitutionality might be examined in the light of the yet unreversed Dred Scott decision; but all doubts on that score were removed by the national abolition of slavery in 1865, through the ratification of the 13th amendment. (See CONSTITUTION, III.)


—See 3 von Holst's United States, 286; 1 Greeley's American Conflict, 189; 2 Wilson's Rise and Fall of the Slave Power, 18; Harris' Political Conflict in America, 114; 2 A. H. Stephens' War Between the States, 165; Buchanan's Administration, 18; 1 Dix's Speeches, 179 (Three Million Bill). Gardiner's The Great Issue, 94; 16 Benton's Debates of Congress, 223-254 (Oregon), 399 (summary of Mexican laws abolishing slavery); Cleveland's A. II. Stephens, 343 (and law authorities there cited in favor of the continuance of Mexican laws after conquest); 3 Statesman's Manual, 1613 (Message of Aug. 8, 1846), 1710 (Message of May 29, 1848); 15 Benton's Debates of Congress, 645 (introduction of the proviso); 16 ibid., index under Slavery; 4 Calhoun's Works, 339 (resolutions of Feb. 19, 1847); 1 A. H. Stephens' War Between the States, 409 (Senate resolutions of May 24-25, 1860); 12 Stat. at Large, 432 (act of June 19, 1862); Wilson's Anti-Slavery Measures in Congress, 92. The different shades of opinion as to the proviso may best be studied as follows: moderate democratic (south), 2 Benton's Thirty Years' View, 695 (north), 1 Dix's Speeches, 281; extreme southern democratic, 4 Calhoun's Works, 535 (Speech of Feb. 24, 1849); southern whig, Cleveland's A. II. Stephens, 332 (Speech of Feb. 12, 1847); northern whig, 5 Webster's Works, 253 (Speech of March 1, 1847); free-soil, Horace Mann's Letters and Speeches, 10 (Speech of June 30, 1848); abolitionist, Jay's Review of the Mexican War, 183, and Warden's Life of Chase, 314; administration, 1849-50, 3 Statesman's Manual, 1847 (Message of Jan. 21, 1850). The Democratic Review carefully avoids the subject until September, 1847 (p. 103), and the Whig Review until August, 1848 (p. 193), and then both pronounce against the proviso, the former as an abolition measure, the latter as a democratic measure.


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