Wednesday, November 18, 2009

Henry Clay: "[I]t is inexpedient . . ."

Several months ago I set out to review Henry Clay's speeches in the Senate on January 29, 1850 and February 5 and 6, 1850 in support of his compromise resolutions. I got no further than looking at the Great Pacificator's brief remarks concerning his first proposed resolution, advocating the admission of California as state “without the imposition by Congress of any restriction in respect to the exclusion or introduction of slavery,” Let's return to the Senate on January 29, 1850, almost one hundred sixty years ago.

Henry Clay next presented his second resolution, which concerned the erection of territorial governments in the territory acquired from Mexico (other than California) and the status of slavery there:
2nd. Resolved, That as slavery does not exist by law, and is not likely to be introduced into any of the territory acquired by the United States from the Republic of Mexico, it is inexpedient for Congress to provide by law, either for its introduction into or exclusion from any part of the said territory; and that appropriate Territorial governments ought to be established by Congress in all of the said territory, not assigned as to the boundaries of the proposed State of California, without the adoption of any restriction or condition on the subject of slavery.

Before turning to Clay's discussion and defense of the resolution, it is worth noting the conflicting positions and pressures the resolution attempted to mediate, which accounts for its delicate and defensive wording. On the one hand, the resolution repudiated the Wilmot Proviso and the northern position that any law establishing territorial governments had to include a provision that explicitly barred slavery.

In an attempt to placate northerners, the resolution argued, in effect, that the Proviso was unnecessary (“inexpedient”). Even without the Proviso, slavery would not enter the territories, for two basic reasons. First, Mexican law had outlawed slavery. Clay tacitly endorsed the theory that that law remained in effect until and unless it was explicitly superseded by a law affirmatively permitting slavery. Second, and perhaps more fundamentally, the laws of nature and geography made it exceedingly unlikely that slavery would take root in the arid southwest.

But these points, of course, highlighted the reasons that mere elimination of the Proviso would not satisfy some southerners. The legal point in particular was sure to rankle. If existing law already prohibited slavery in the southwest territories, then slavery could have a fair opportunity to gain a foothold there only if a new law superseded the old and explicitly permitted slavery. Simply eliminating the Proviso was a sham that deprived the South of its asserted right to an equal chance to settle in the territories.

It was on the horns of such dilemmas that any resolution concerning the territories was caught. Let us see now how Clay tried to walk the tightrope.

Clay's introductory discussion focused primarily on northern supporters of the Proviso, emphasizing that existing law already barred slavery in the territories. “The truth of law which [the resolution] declares is, that there is does not exist, at this time, slavery within any portion of the territory acquired by the United States from Mexico.” At the same time, in an attempt to blunt southern as well as northern objections, Clay argued that, since the laws of nature and geography barred slavery, “I believe it [establishing slavery] could not be done even by the force and power of public authority.”

Overlooking the fact that California, too, had been part of Mexico and presumably subject to its laws, Clay argued that the failure of slavery to take root in California demonstrated that it could certainly not flourish in the southwest:
Sir, facts are daily occurring to justify me in this opinion. Sir, what has occurred? And upon this whole subject, I invite Senators from the free States especially to consider what has occurred even since the session – even since the commencement of this session – since they left their respective constituencies without an opportunity of consulting with them upon that great and momentous fact – the fact that California herself, of which it was asserted and predicted that she never would establish slavery within her limits when she came to be admitted as a State; that California herself, embracing, of all other portions of the country acquired from Mexico, that country into which it would have been most likely that slavery should have been introduced; that California herself has met in convention, and by a unanimous vote, embracing in that body slaveholders from the State of Mississippi, as well as from other parts, who concurred in the resolution – that California by a unanimous vote has declared against the introduction of slavery within her limits.

Finally, Clay alluded to president Zachary Taylor's plan to leave the southwest country without territorial government until it petitioned for admission as states. This, Clay maintained, was unacceptable because it would abandon the inhabitants to lawless anarchy and violence:
Sir, much as I am disposed to defer to high authority, anxious as I really am to find myself in a position that would enable me to cooperate heartily with the other departments of the Government in conducting the affairs of this great people, I must say that I cannot – without a dereliction of duty – consent to an abandonment of them without government, leaving them to all those scenes of disorder, confusion, and anarchy which I apprehend, in respect of some of them, there is too much reason to anticipate will arise. It is the duty, the solemn – I was going to add the most sacred duty – of Congress to legislate for their government if they can, and at all events to legislate for them, and to give them the benefit of law, and order, and security.

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