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WITH the transference by Mexico of the territory granted to us in the treaty of Guadaloupe Hidalgo, arose the question as to whether or not slavery should be allowed within its borders. Those who opposed the extension of slavery into this new domain, had what they considered an unanswerable argument upon which to base their contention. As the laws of Mexico provide for freedom within her territory, they said, California and New Mexico are already assured freedom from the institution of slavery. These are conquered regions, and the Laws of Nations provide that "the laws of all conquered countries remain until changed by the conqueror.” 1 This is now the law, and will remain the law until the United States explicitly repeals it.

This argument, Calhoun and his pro-slavery followers were prepared to meet. As soon as the territory was ceded to the United States, argued the former, the authority of Mexico ceased, and that of the United States and her Constitution supplanted it. All laws not consistent with that Constitution, therefore, at once became void. The law excluding slavery is contrary to that Constitution, which recognizes slavery; therefore, the Mexican laws are void, and slavery has a right in the new territory.

1 Rhodes', "United States Since the Compromise of 1850," I, p. 94; Johnston's "American Political History" (Woodburn Ed.), II, pp. 120-121.

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Neither Congress, nor the inhabitants of the region, nor the territorial legislatures have power to exclude it.

Acting upon this theory, the United States Senate, still controlled by the pro-slavery interests, proceeded to show how it wished the question handled. The House had passed a bill providing for a territorial government for the Oregon Territory, and prohibiting slavery within it. The Senate, instead of passing this bill, as the House had sent it up, tacked on an amendment providing for the extension of the Missouri Compromise line (36° 30′) to the Pacific Ocean. The establishment of such a line would, of course, have opened to slavery that part of the new territory that was thought to be fitted for slave labor.

This amendment, the House declined to accept, and after considerable dispute, the Senate had to yield, and the Oregon Territory was organized with slavery prohibited.2

The question of what should be done in the new territory was thus left undetermined, and, before Congress again took it up, a wonderful change had been wrought by the discovery of gold in California, a change which settled the question of slavery, so far as California was concerned, and settled it in a way unfavorable to the slave-holding interests.

The story of the "Forty-Niners," as they were called, is the story of probably the most remarkable migration and growth of a political community in all history. Early in January, 1848, a mechanic named Marshall, who was engaged in building a sawmill upon the Sacramento River, noticed in the mill stream some yellow deposit

1 Rhodes, I, p. 96.

2 Ibid.

3 H. H. Bancroft's "History of the Pacific States," XVIII, p. 28.

which the water had brought down. He gathered a pouch of it and took it to his Swiss employer, Captain Sutter, who applied such tests as he knew, and satisfied himself that it was gold.1

The two men agreed to keep secret the discovery, until they could secure possession of the tract where it had been made; but, in their eagerness to gain possession, the secret leaked out, and, within four months, thousands had entered the region.2 Some worked at random with pick and shovel. Some washed the river sand, painfully separating the gold dust from the trash, while others crawled into the crevasses of the rocks and picked out gold nuggets,3 weighing, as Colonel Mason's report states, from one to six ounces. The few towns along the Pacific Coast were depopulated of their male inhabitants, and crowds hastened over the borders from Mexico.

Colonel Mason's report reached the War Department at Washington in December, 1848, and was published with President Polk's indorsement. The American and

European presses took it up, and vast crowds made ready to migrate. Capitalists prepared vessels to carry the adventurers around Cape Horn, and wagons for making the trip to California overland; but many, unwilling to wait for spring, made their way to Central America, crossed the Isthmus, and waited for the first Pacific mail steamer which had left New York the previous October. She had started without a passenger for California, but,

1 Schouler, V, p. 133.

2" Arrivals in 1848 have as a rule been overestimated," says H. H. Bancroft, XVIII, p. 71. "News did not reach the outside world in time for people to come from a distance during that year."

3 H. H. Bancroft's "History of the Pacific States," XVIII, pp. 87, 115, etc.

in January when she reached Panama, she found fifteen hundred waiting to embark,1 only one-thirtieth of whom could be supplied with staterooms.

As soon as spring came, swarms of gold seekers began the tedious journey overland in wagons, and, in spite of the tremendous difficulties of such an expedition, fortytwo thousand made the overland journey in 1849, and thirty-nine thousand reached California by sea. Pestilence and starvation followed in their course, and crimes of all sorts prevailed in the new country, where few laws and no civil government as yet existed.

The growth of population was almost incredible. The town of San Francisco, which in February, 1849, numbered only two thousand, closed the year with a population of ten times that number, and the California region, which, at the beginning of the year 1848, was a thinly settled territory of little importance, had become sufficiently populous by May, 1849, to be eligible for statehood.

Compelled by necessity to establish some sort of government, and inspired by a suggestion from the new President, Taylor, they held a Convention (SeptemberOctober, 1849), drafted a Constitution prohibiting slavery within the State, and sent a formal petition to Washing

1 H. H. Bancroft's "History of the Pacific States," XVIII, pp. 129-130. 2 Rhodes, I, p. 113; H. H. Bancroft, XVIII, p. 159.

3 Schouler, V, p. 141.

4 In April, 1849, Taylor had sent Butler King of Georgia as his messenger to urge the Californians to draft a State constitution, but he gave them no advice about what to do concerning slavery. Von Holst, III, p. 461, and Taylor's Message to the Senate, January 23, 1850. Text Richardson's "Messages and Papers," V, p. 27.

5 This achievement, Von Holst (III, p. 463) describes as "the most magnificent illustration of the wonderful capacity of this people for self-government."

ton, asking that California be admitted to the Union as a free State.1

This petition greatly alarmed the slave States, which at once issued protests against allowing California thus to exclude from her borders the southern immigrant, as they declared the rejection of the "peculiar institution" would do. The northern States responded with spirited declarations in favor of the principle of the Wilmot Proviso, and the South again replied with threats of secession, unless her "rights" in the new region should be respected. It was evident, even to those unskilled in political affairs, that the application of California was likely to precipitate a dangerous

crisis.

After his humiliating defeat in the Whig Convention of 1848, Henry Clay had retired from public life, and, but a few months later, had sent to his friend, Richard Pindell, a letter which seems written as a farewell manifesto upon the slavery question." "The principle," he said, “on which it [slavery] is maintained would require that one portion of the white race should be reduced to bondage to serve another portion of the same race, when black subjects of slavery could not be obtained." . . . "In Africa" he added, "where they may entertain as great a preference for their color as we do for ours, they would be justified in reducing the white race to slavery in order to secure the blessings which that state is said to diffuse. . . . Nay, further, if the principle be applicable to races and nations, what is to prevent its being applied to individuals? And

1 Blaine's "Twenty Years in Congress," I, p. 90.

2 It does not appear in Colton's Collection; but is quoted in Schurz's "Clay," II, p. 316.

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