I've been debating how to proceed with my discussion of the Clayton Compromise. For better or worse I've decided to give you a brief overview of what the compromise bill proposed, so you can get your bearings. Then we'll take a closer look at the statutory language, to see how it implemented its plan.
The overview is via David M. Potter's magnificent The Impending Crisis, 1848-1861:
Under the bill that Clayton reported on July 18, [1848,] Congress would establish no restrictions on slavery; Oregon, when organized, would retain the laws against slavery which the provisional government had adopted; and the territorial legislatures of California and New Mexico would be denied any authority to make laws concerning slavery. The crucial feature of the bill, however, was the provision that any slave coming into these territories might sue in the federal courts to determine the legal status of slavery in the area to which he had been brought.
The Clayton Compromise was embodied in a bill presented to the Senate by the Committee of Eight chaired by Whig Senator John M. Clayton of Delaware. The bill, entitled A Bill to establish the Territorial Governments of Oregon, California and New Mexico, is lengthy; its thirty-six sections consume three and one-third densely-packed pages (ten columns) in the Congressional Globe. However, for our purposes it may be summarized with reasonable brevity.
As the title indicates, the bill sought to establish three territorial governments: Oregon (covering “that part of the territory of the United States which lies west of the summit of the Rocky Mountains and north of the forty-second parallel of latitude”); California (“all that part of the territories of the United States called Upper California, acquired by the treaty [of Guadalupe Hidalgo]”); and New Mexico (“all that part of the territories of the United States called New Mexico, acquired by the treaty [of Guadalupe Hidalgo]”). It is worth noting that the bill did not address the looming dispute as to the location of the border between Texas and the New Mexico territory.
The differences in the treatment of slavery between Oregon, on the one hand, and California and New Mexico, on the other, appear in two sorts of provisions in the bill: the “legislative power” granted to the territories and the ability to appeal slavery-related judicial decisions to the United States Supreme Court.
The "legislative power" provisions reflect two basic differences in the treatment of the proposed Territories: the locus of that power, and its extent. As to locus, Section 3 of the bill proposed to grant Oregon an elected "Legislative Assembly" consisting of a 13-member "Council" and a 26-member "House of Representatives." In California and Oregon, however, the "legislative power" would, "until Congress shall otherwise provide, be vested in the Governor, Secretary, and Judges of the Supreme Court" of the Territory - appointed officials.
When asked to account for the difference, Senator Clayton pulled no punches:
Mr. CLAYTON. The committee thought, in view of all the facts, that the people of California and New Mexico were not now in that state which fitted them to elect a delegate to Congress, or a territorial legislature. The gentleman [Whig Senator Thomas Corwin of Ohio], as a northwestern man, knows that many of our territories, in the first instance, had just such a form of government extended over them as is proposed in this bill for California and New Mexico. The next stage of territorial organization we have given to Oregon, and I think my friend from Ohio must admit that the character of the population of New Mexico renders them utterly unfit for self-government.
Mr. CORWIN. Will the Senator from Delaware allow me to ask another question? Why does he consider the people of New Mexico unfit for self-government?
Mr. CLAYTON. They are entirely too ignorant, and the gentleman probably knows that as well as I do.
More important for our purposes were the differences in the scope of the legislative power. The power granted to the territorial legislature of Oregon contained no restrictions concerning slavery. Section 6 extended that power “to all rightful subjects of the legislation consistent with the Constitution of the United States and the provisions of this act”:
Sec. 6. And be it further enacted, That the legislative power of the [Oregon] Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act; but no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed upon the property of the United States; nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents. All the laws passed by the Legislative Assembly shall be submitted to the Congress of the United States, and if disapproved shall be null and of no effect.
In addition, a separate section, Sec. 12, provided that (in the words of David P. Currie) "[l]aws enacted by the wildcat 'provisional government' of Oregon (which had purported to ban slavery) were to remain in force temporarily":
Sec. 12. And be it further enacted, That the existing laws now in force in the Territory of Oregon, under the authority of the provisional government established by the people thereof, shall continue to be valid and operative therein, so far as the same be not incompatible with the Constitution and the provisions of this act, for three months after the first meeting of the Legislature in said Territory; subject, nevertheless, to be altered, modified, or repealed, by the Legislative Assembly of the said Territory of Oregon; and the Constitution and laws of the United States are hereby extended over and declared to be in force in said Territory, so far as the same, or any provision thereof, may be applicable.
The sections of the bill dealing with the legislative power of the California and New Mexico territories contained no provision corresponding to Section 12 (although it may well be, as we shall see in later posts, that Mexican law barring slavery remained in effect there). The sections corresponding to Section 6 expressly barred the passage of any law “respecting the prohibition or establishment of African slavery.” Here is Section 26, defining the legislative power of the California territory (emphasis added):
Sec. 26. And be it further enacted, That the legislative power of said [California] Territory shall, until Congress shall otherwise provide, be vested in the Governor, Secretary, and Judges of the Supreme Court, who, or a majority of them, shall have the power to pass any law for the administration of justice in said Territory, which shall not be repugnant to this act, or inconsistent with the laws and Constitution of the United States. But no law shall be passed interfering with the primary disposal of the soil, respecting an establishment of religion, or respecting the prohibition or establishment of African slavery; and no tax shall be imposed upon the property of the United States; nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents. All the laws shall be submitted to the Congress of the United States, and, if disapproved, shall be null and of no effect.
Section 33, defining the legislative power of the New Mexico territory, was substantially identical to Section 26.
The other difference between Oregon on the one hand and California and New Mexico on the other concerned appeals to the United States Supreme Court. To simplify just a bit, for each territory the legislation created district courts and a territorial Supreme Court. The district courts were the trial courts. District court judgments could be appealed the territorial Supreme Court. And decisions of the territorial Supreme Court could be appealed to the United States Supreme Court.
The provisions relating to procedures in and appeals from Oregon territorial courts contained no special allowances for slavery cases. Section 9 provided in relevant part that appeals from the territorial Supreme Court to the United States Supreme Court could be taken to the same extent that such appeals could be taken from federal circuit courts:
Writs of error and appeals from the final decisions of said supreme court [of Oregon Territory] shall be allowed, and may be taken to the Supreme Court of the United States, in the same manner and under the same regulations as from the circuit courts of the United States, and each of the said district courts shall have and exercise the same jurisdiction in all cases arising under the Constitution and laws of the United States as is vested in the circuit and district courts of the United States . . ..
In California and New Mexico territories, however, the bill facilitated the commence of slavery-related cases and their appeal to the United States Supreme Court. Here was the heart of the bill. As David Currie has explained, Sections 24 (California) and 31 (New Mexico) were intended to set the stage "for judicial resolution of the vexing question of slavery in the territories" by "remov[ing] possible obstacles to Supreme Court review that had been suggested during the debates".
In "cases involving title to slaves" the normal jurisdictional amount of $2,000 was waived, and the [United States Supreme] Court was specifically authorized to review decisions of territorial courts in habeas corpus cases "involving the question of personal freedom."
Section 24, dealing with California territory provided in relevant part (and Section 31, dealing with New Mexico, was substantially identical):
About the illustration at the top (1852):
Writs of error and appeals from the final decisions of said supreme court [of California Territory] shall be allowed, and may be taken to the Supreme Court of the United States, in the same manner and under the same regulations as from the circuit courts of the United States, except only that in all cases involving title to slaves, the said writs of error or appeals shall be allowed and decided by the said supreme court [of the Territory] without regard to the value of the matter, property, or title in controversy; and except also that a writ of error or appeal shall be allowed to the Supreme Court of the United States from the decision of the supreme court created by this act [i.e., the supreme court of the Territory], or any judge thereof, or of the district courts created by this act, or of any judge thereof, upon any writ of habeas corpus, involving the question of personal freedom . . ..
A symbolic group portrait eulogizing recent legislative efforts, notably the Compromise of 1850, to preserve the Union. The work is in some respects a memorial to the triumvirate of senior American legislators: Henry Clay, John Calhoun, and Daniel Webster, who appear in the center of the group. All three were deceased by the end of 1852. (Calhoun died on March 31, 1850, Clay on June 29, 1852, and Webster on October 24, 1852). The print's publisher may have sought to take advantage of the optimistic climate which followed passage of the Compromise of 1850. As a commemoration of this legislative achievement, however, its hagiography is faulty--perhaps in the interest of wider appeal. John Calhoun, the central standing figure, opposed the compromise and died well before its passage, whereas key figures in the legislative battle for its acceptance, such as Senator James M. Mason of Virginia, are not shown here at all. Aside from Calhoun, the men portrayed here were generally considered friendly to the compromise, some of them being members of the Senate's Committee of Thirteen, many from the South. The print may also relate to the debates surrounding the presidential campaign of 1852. Both Whig and Democratic parties formally endorsed the compromise in their respective 1852 platforms. Whig presidential candidate Winfield Scott (prominent at far left) had lobbied strenuously on behalf of the compromise. The absence of Scott's Democratic rival Franklin Pierce may be explained by the fact that the print appeared before the dark-horse candidate's nomination in early June. (The print was deposited for copyright on May 27, 1852.) The figures pictured here are (front row, left to right): Winfield Scott, Lewis Cass, Henry Clay, John Calhoun, Daniel Webster, and (holding a shield) Millard Fillmore. Calhoun and Webster stand with their hands resting on the Constitution, a bust of George Washington between them. Cass holds a document "Protest [illegible] Treaty." Scott, in uniform, grasps with his right hand a portfolio from which protrude papers and maps recalling his Mexican War victories. In the left background are (left to right): Speaker of the House Howell Cobb of Georgia, Virginia representative James McDowell, Thomas Hart Benton of Missouri, and former secretary of state John M. Clayton of Delaware. In the second row at right: Ohio senator Thomas Corwin, James Buchanan, Stephen A. Douglas, attorney general John J. Crittenden, and senators Sam Houston of Texas and Henry Foote of Mississippi. Behind, beneath a genius carrying a laurel branch and liberty staff, are senators Willie P. Mangum of North Carolina and W. R. King of Alabama. At far right, below an eagle, are Daniel S. Dickinson of New York, Supreme Court justice John McLean of Ohio, and senators John Bell of Tennessee and John C. Fremont of California. In the background curtains are drawn to reveal a gleaming temple with a colonnade surmounted by a large ball, a figure holding a liberty cap, and a phoenix.