Later there was a steady influx of southerners and their Negro slaves into the territory of California, after the country was taken over by the United States. Then came the question as to the enslavement of the Negro. The situation became serious after the Congress of the United States appropriated three millions of dollars for the purchase of the new territory, and still more so after gold was discovered there. Mexican rule ended with the cession of the territory to the United States; and yet session after session of Congress adjourned without giving California a territorial form of government. The question of slavery in the newly acquired territory divided Congress so that they could not decide the issue. Southern newspapers were advertising for slave-owners to send names and the number of slaves they were taking to California to found a New Colony.²⁷

The settlers were divided. Some came because they either disliked slavery, or were too poor to own slaves. They recognized the possibilities for making California a free State and did not care to be designated Poor White Trash by masters who were being allowed to fill the State with Negro slaves to constitute the basis of an aristocracy like that in the South. There were other inhabitants in California at the time who, being slave-owners, were southern sympathizers. They were determined either to have slavery in California or make a desperate effort before seeing the territory given up as a free State.²⁸ It did not require very much investigation, however, to show that the pro-slavery party was in the minority. The editor of the Californian said in May, 1848, that he voiced the sentiments of the people in California in saying that slavery was neither needed nor desired there. A correspondent of this paper hoping to hold that section for free labor said: "If white labor is too high for agriculture, laborers on contract may be brought from China." Referring to the proposal to make the commonwealth a slave State Buckelew said: "We have not heard one of our acquaintance in this country advocate this measure and we are almost certain that 97-100 of the present population are opposed to it." Again it is remarked in this paper: "We left the slave states because we did not like to bring up a family in a miserable, can't-help-one's-self condition," and dearly as he loved the union, he would prefer California independent to seeing her a slave State.²⁹

The lack of law and order and fear of the southern slave-owners with their herds of Negro slaves finally led to the call of the Constitutional Convention. The question of slavery there was not so much debated in that body as was expected. Some excited pro-slavery leaders were talking of an independent Pacific Republic. The southern faction in the convention was led by a Mr. Gwyn, who afterwards became a United States Senator from California, and the northern element was ably represented by a Mr. Broderick, who later was chosen State Senator.³⁰ The convention finally drafted their constitution with a section which provided that "neither slavery nor involuntary servitude unless for the punishment of crime shall ever be tolerated in this state."

The pro-slavery faction in the convention was determined to have slavery somewhere and had managed to have the eastern boundary of California so designated that it extended as far as the Rocky Mountains. This would have resulted in rejection by Congress, or a division of the territory into a Northern and a Southern California, giving the pro-slavery element a new State. The unwieldy boundary, however, was discovered in time to have it changed, but not until after much debate, which almost wrecked the constitution. The California representatives elected by the convention left for Washington, where they presented to Congress the constitution and the petition of the California settlers asking for admission as a State. There had never been a precedent for their act. Yet the settlers in California felt perfectly justified, since it was their only safeguard against the pro-slavery leaders who were bringing their slaves into the territory.

Leaders at the national capital naturally hesitated, not knowing whether or not the admission of California under the conditions thus obtaining would aggravate or improve the national situation. California, however, cared little about the national situation, as is attested by the resolutions of 1850 to the effect: "That any attempts by congress to interfere with the institution of slavery in any of the territories of the United States would create just grounds of alarm in many of the States of the union; and that such interference is unnecessary, inexpedient, and in violation of good faith; since, when any such territory applies for admission into the union as a state, the people thereof alone have the right, and should be left free and unrestrained, to decide such question for themselves." Broderick moved the insertion of the following: "That opposition to the admission of a state into the union with a constitution prohibiting slavery, on account of such prohibition, is a policy wholly unjustifiable and unstatesmanlike, and in violation of that spirit of concession and compromise by which alone the federal constitution was adopted, and by which alone it can be perpetuated." This amendment was adopted.³¹

After a debate of four months Congress admitted California as a free State as one of five compromises. Jefferson Davis, however, repudiated the idea of advantage to his section. He said: "Where is the concession to the South? Is it in the admission, as a state, of California, from which we have been excluded by congressional agitation? Is it in the announcement that slavery does not and is not to exist in the remaining territories of New Mexico and California? Is it in denying the title of Texas to one half of her territory?" He held that gold washing and mining was particularly adapted to slave labor, as was agriculture that depended on irrigation.³² The day after the admission certain southern senators sent to that body a Protest against the injustice of the act of Congress, admitting California as a free State. The Senate refused the clerk permission either to read or record it. Whereupon the newspapers began publishing articles of severe criticism and talked of dividing the Union. Jefferson Davis went before the United States Senate and, addressing it, called attention to these comments, adding that so much outside criticism was doing more to divide the Union than the Protest would possibly do. Congress finally voted that the Protest be recorded.³³

Was this to be a free State in every sense of the word? This was the day when the slave power "was covertly grasping at the Spanish-speaking countries beyond the Rio Grande, as it had at the lands beyond the Sabine."³⁴ At first, it was not, for a good many slaves were brought into the State. On April 1, 1850, an advertisement appeared in the Jackson Mississippian referring to California, the Southern Slave Colony and inviting citizens of slave-holding States, wishing to go to California, to send their names, number of slaves, time of contemplated departure, etc., to the Southern Slave Colony, of Jackson, Mississippi. The design was to settle in the richest parts of the State and to secure an uninterrupted enjoyment of slave property. The colony was to comprise about 5,000 white persons and 10,000 slaves.

Another effort to extend slavery in this section came in the unsuccessful filibustering expedition of the Tennessee lawyer, William Walker, who undertook to establish to the south in Sonora, a State with a constitution like that of Louisiana, basing his advocacy of slavery on the lofty grounds of civilizing the blacks and liberating the whites from manual labor. To explain the meaning of this expedition Bancroft considers it sufficient to point out that Jefferson Davis was Secretary of War at that time and that the Gadsden purchase was then under consideration.³⁵ In 1852 Peachy of San Joaquin introduced a resolution to allow fifty southern families to immigrate into California with their slaves. Some of them came without permission but on finding that they could not legally hold their slaves, they sent a part of them back while others became free.

In 1852 the Legislature passed a rigid Fugitive Slave Law intending to bar slavery from the State. The mischievous clause of this measure was that all slaves who had escaped into or were brought to California previous to the admission of the State to the Union were held to be fugitives, and were liable to arrest under the law, although many of them had been in the State several years, during which they had accumulated considerable property. The pro-slavery element not only profited by this, but the interpretation of this law by many of the Judges enabled them to bring their slaves into the State, work them in the mines, and return to the south and back to slavery with their Negroes.³⁶

If they did not wish the trouble of their return passage they auctioned them off to the highest bidder. It also enabled them to make fortunes by selling to the slaves their freedom, charging them twice and often thrice the price he could have possibly brought on the other side of the Rocky Mountains.³⁷ In certain southern counties of the State it was unpopular to speak in behalf of the slaves. In 1855 Chase and Day, two Abolitionists of Alameda County, were ridden on a rail, ducked and otherwise maltreated.³⁸ That same year expired the Fugitive Slave Law which had been renewed from year to year to enable slave-owners to reclaim fugitives who had sought refuge in that State prior to its admission to the Union. Fearing that this might be followed by other legislation hostile to their class, the Negroes held a convention in San Francisco that year to discuss their rights, their treatment by the white people, politics, principles and necessity of education. The Fugitive Slave Law was not reenacted.

Many slaves, however, asserted their rights. Such was the case of Archy, a slave brought by one Charles A. Stoval from Mississippi to California in 1857. After hiring Archy out for some time Stoval undertook to return him to Mississippi. Archy escaped and was arrested as a fugitive. Stoval sued out a writ of habeas corpus for his possession and the case came before the Supreme Court for adjudication. Peter Burnett, formerly Governor, who had been appointed justice of that court by Governor Johnson in 1857 and filled the office until 1858, presided. As Burnett was a southern man, his decision was foreshadowed. He decided that although Stoval could not sustain the character of either a transient traveler or a visitor and under the general law was not entitled to Archy, but he yet held that there were circumstances connected with the particular case that might exempt him from the operation of the rules laid down. One of the circumstances was that Stoval was traveling for his health; another, that he was short of means upon arrival in California; and still another, that this was the first case of the kind. He, therefore, ordered Archy to be turned over to Stoval. Joseph G. Baldwin, who succeeded Burnett, characterized the decision as "giving the law to the North and the Negro to the South."³⁹ After being delivered to Stoval, Archy was taken to San Francisco, but his friends there sued out a writ of habeas corpus for his liberation before Judge Thomas W. Freelon, of the County of San Francisco. While this case was pending, however, Stoval swore to a new affidavit that Archy escaped from him in Mississippi and procured a warrant from George Pen Johnston, United States Commissioner, for his arrest as a fugitive slave from Mississippi. Archy was then discharged by Judge Freelon. He was immediately rearrested and taken before George Pen Johnston, who decided that Archy was in no sense a fugitive from Mississippi and discharged him.⁴⁰

The tendency to free the Negroes brought there checked the importation of that class. The rights of the master to his slave, however, were not easily relinquished and the institution of slavery in California did not come to an end until 1872. Freedom, however, had to win and the pro-slavery element had to change its policy. In 1856 and 1857 efforts were made to call a convention to change the constitution so as to permit the importation of slaves, for with the expiration of the Fugitive Slave Law in 1855, slave-owners who held minors had to return them to slave States or let them go free. Since the Negroes brought into the State could in most cases become free the pro-slavery party then sought to get rid of the free Negro.

In his message to the legislature in 1850, Governor Burnett recommended the exclusion of free Negroes. This was always Burnett's hobby. He incorporated this into the laws of Oregon when he revised them in 1844. Burnett had been brought up in the South and although he had ceased to be a slaveholder, he could not think of living with Negroes as freemen. The exclusion of the blacks too had a sort of popular appeal in it. The legislature, however, was divided on the question as to what should be done with the free Negro. A bill in compliance with the wishes of the Governor was introduced but defeated. Undaunted by this, however, the enemy of the free Negroes won a victory in another quarter in enacting a law that no black or mulatto person or Indian should be permitted to give evidence in any action to which a white person was a party. The leaders of the Negroes held another convention in 1856 to protest against this law. Another bill providing for the prohibition of the immigration of free persons of color into the State was introduced in 1858 and after much debate put through both houses, but it never became a law. The black code, of course, was abrogated after the Civil War.

Delilah L. Beasley