cited this preexistence of involuntary servitude as ample precedent for its retention and legal sanction. One politician explicitly understood peonage as a form of slavery when outlining its legal history in the Southwest, noting that it existed under former Mexican statutes and was merely perpetuated in recent master-servant codes.81 These legal precedents became a focal point for congressional deliberations prior to New Mexico’s admission into the Union as a territory on September 9, 1850. Another senator sardonically summarized the crux of the entire debate when he insisted that any assertion of previous Mexican laws remaining valid “is to say, in other terms, that we are subject ourselves to the laws of a foreign nation.”82
Hugh N. Smith corroborated the shaky ground upon which this viewpoint rested. Regarding the statutory preexistence of slavery in New Mexico, he informed Daniel Webster that it “had been altogether abolished by the laws of Mexico,” although such abolitionist doctrine effected only racial slavery and did nothing to suppress or limit peonage and captivity.83 Mexico did indeed approve several measures outlawing slavery and regulating relationships between masters and servants between the years 1821, when it gained its independence from Spain, and 1846, when the Mexican-American War commenced. Southerners contended that preexisting antislavery laws became extraneous the moment Mexico ceded the territory to the United States, at which time the mandates of the U.S. Constitution immediately applied to those lands. Contrarily, Northerners insisted that Mexican slavery statutes continued in full force until territorial officials abrogated them, an understanding with roots in the American conquest of New Mexico. When the Army of the West took possession of Santa Fe in August 1846, Kearny immediately issued a proclamation declaring that “the laws hitherto in existence will be continued until changed or modified by competent authority,” thereby acknowledging congressional authority to legislate more definitively on the issue at some future date.84
The first such controversial decree appeared in Mexico’s 1824 constitution and primarily involved the transatlantic slave trade. The law forbade trafficking or commerce in slaves and granted instantaneous freedom to any bondsmen brought into the country. It required the immediate seizure of sea-bound slave-trading vessels and called for the imprisonment—for a period of up to ten years—of any persons found to be complicit in such activities. The edict reinforced earlier Spanish regulations banning the slave trade and prohibited any person from taking slaves into Mexico, whether for the purpose of selling them or for retaining them as personal servants.85
Another regulatory measure of April 15, 1829, marked the second time that Mexico abolished slavery and reiterated that all persons formerly held in a condition of servitude were henceforth free. The primary difference between this law and Mexico’s 1824 constitutional provision arose from the fact that it allowed slaveowners to be compensated for their freed slaves “when the condition of the Treasury admits it.”86 The stipulation that masters be remunerated for their liberated slaves sought to ease the transition to a nonslaveholding society and stifle any public outcry that might emanate from such a decree. Unfortunately for Mexican slaveholders, a chronically overspent national treasury never facilitated the issuance of such reimbursements. The Mexican president at that time, Vicente Guerrero, could scarcely have imagined that his government’s slave code would become an object of debate in the United States Congress twenty years later. One U.S. senator, while denying the validity of the law as it pertained to New Mexico after the 1846 conquest, referred to Guerrero’s decree as “waste paper,” an assertion to which Northern abolitionists vehemently objected.87 Senator James Cooper of Pennsylvania, for one, not only believed these Mexican antislavery laws to be commendable but also insisted that they remained valid and effective in the southwestern territories, a suggestion that many in the room found audacious and even laughable.88
A third and final Mexican statute of April 4, 1837, repeated the stipulations of the preceding two laws, once again banning slavery and reaffirming the right to compensation for any master despoiled of his human property upon entering Mexico.89 The passage of three nearly identical mandates betrayed the Mexican government’s failure to effectively enforce the first two. The country’s vast territorial domain made it hard for the government to uphold such regulations in its sparsely populated frontier provinces, especially New Mexico, a difficulty that American lawmakers came to appreciate in later years. Continuous reverberations in governmental leadership, an omnipresent threat of political coups, and financial insolvency made it tough for the Mexican national government to exert any meaningful effort toward the enforcement of antislavery provisions.
Congressional dialogue on the validity of Mexican laws during the 1848–1850 sessions reflected the rampant sectionalism that fueled such debates, with all rationality sometimes being thrown to the wind during the course of rhetorical exchanges. Because Mexico’s statutes prohibited slavery, Northerners voiced strong support for their continuance and sought to incorporate them into a new set of regulations for New Mexico. Conversely, Southerners denied that the laws remained applicable. John Berrien summarized his section’s position when stating that earlier laws, “with whatever authority they may have been enacted while California and New Mexico were a part of the Mexican republic, ceased instantly upon their transfer to the United States.”90 Had Mexico’s laws upheld the institution of slavery, Northern and Southern positions on the matter would no doubt have been reversed.
Northerners cited legal precedent in support of retaining the preexisting laws of conquered territories, alluding to instances in which the U.S. Supreme Court ruled that civil and municipal codes relating to property ownership in ceded foreign land remained in force until government officials annulled or replaced them. Senator Cooper mentioned seven different court cases that established this legal standard.91 The primary basis for his argument emanated from an 1828 Supreme Court case in which Chief Justice John Marshall addressed the issue as it pertained specifically to territorial acquisitions. Upon reverting to American sovereignty, a ceded territory dissolved all formal relations with its former country and came under the jurisdiction of the United States. Marshall explained that the transfer of land from one nation to another involved a complementary and obligatory shift in allegiance on the part of those residing there but acknowledged that any law regulating “the intercourse and general conduct of individuals,” including property rights and, by extension, slavery, would remain in effect until modified “by the newly created power of the state.”92
In other words, upon the acquisition of foreign territory, the existing law of the land continued in full effect until the conquering nation abrogated or amended it. Northern abolitionists used this ruling to argue for the continuation of Mexican antislavery laws, pointing out that no new edicts had yet been enacted to replace the old ones. According to Southern logic, however, this argument did not apply to the present situation because the Supreme Court ruling pertained to civil laws involving “the intercourse between citizen and citizen” and therefore had no impact on political mandates involving slavery.93 Senator Calhoun conceded that foreign municipal laws proven to be consistent with the American political system might remain unchanged, but he insisted that this should have no impact on slavery in New Mexico. Based on his interpretation of preexisting Mexican municipal law, Calhoun concluded that “the peonage system would continue, but not to the exclusion of such of our citizens as may choose to emigrate with their slaves or other property.”94 In Calhoun’s eyes, the Northern argument contradicted itself inasmuch as Mexican statutes prohibited chattel slavery but upheld peonage, which in principle and practice was merely a modified form of involuntary servitude. Because slaves were not considered citizens, Northerners countered that Mexico’s civil and municipal laws could not, under the U.S. Constitution, continue to regulate slavery in New Mexico. The entire debate hinged upon one question: Did a law regulating slavery constitute a “civil or municipal law” or a “public or political law”? If the former, then Mexican legislation could not remain in effect beyond the moment of American conquest.
Speaking to the House of Representatives on July 29, 1848, Richard Donnell of North Carolina announced once again that Mexican law abolished enslavement and proclaimed in no uncertain terms that “African slavery, as it exists in the Southern States, was
