Slave states and free states

• 1. Introduction

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  Slave states and free states divided the United States for most of the century before 1865. One column allowed slavery and the domestic slave trade. The other banned both. The ambition behind that divide could turn openly aggressive. Senator Albert Brown once declared, 'I want Tamaulipas, Potosi, and one or two other Mexican States, and I want them all for the same reason: for the plantation and spreading of slavery.'

  His wish list never came true, but it captures how far some politicians were willing to go to keep the slave-state column growing. What actually decided which new territories became slave states and which became free? And how did a system built on careful numerical balance finally come apart?

• 2. Drawing the Line

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  In 1619, the first enslaved Africans arrived in Virginia, a group described in records only as 'twenty and odd.' Within decades, slavery had spread through all Thirteen Colonies. Indigenous peoples were also enslaved, though most of the enslaved population came to the Americas from Africa through the Atlantic slave trade. Enslaved people in the colonies lived longer on average than those held in the West Indies or South America. Lower rates of tropical disease and somewhat better treatment explained much of that gap. That gap drove rapid population growth among enslaved communities in the decades leading up to the American Revolution.

  Organized movements against slavery began in the mid-18th century. The Declaration of Independence promised equality, yet that promise sat uneasily beside the status of most Black Americans, free or enslaved. Thousands of Black Americans fought for the Patriot cause. Thousands more joined the British side, drawn by offers of freedom such as the Philipsburg Proclamation. In the 1770s, enslaved Black people across New England sent petitions to their legislatures demanding freedom.

  Five Northern states passed gradual abolition laws within a four-year span. Pennsylvania started in 1780, followed by New Hampshire and Massachusetts in 1783, then Connecticut and Rhode Island in 1784. These were the first abolition laws anywhere in the Atlantic World. Vermont, independent from Britain since 1777, had already limited slavery that same year, before joining the Union as the 14th state in 1791. New Hampshire's constitution, despite that 1783 start, did not formally declare the state fully free until 1857. New York abolished slavery in 1799 and New Jersey followed in 1804. By 1804, every Northern state had abolished slavery or set a gradual process in motion. Even so, hundreds of former slaves were still working unpaid as indentured servants in Northern states as late as the 1840 census.

  In the South, Kentucky was carved out of Virginia as a slave state in 1792, and Tennessee followed from North Carolina in 1796. By 1804, before any new states emerged from the federal western territories, slave states and free states stood tied at eight apiece.

  Article 4, Section 2, Clause 3 of the Constitution, the Fugitive Slave Clause, referred to an enslaved person only as a 'Person held to Service or Labor.' Congress turned that clause into working law twice, first with the Fugitive Slave Act of 1793 and again with the Fugitive Slave Act of 1850. Under both laws, an enslaved person did not become free simply by reaching a free state and had to be returned to their owner. Enforcing that return became one of the deepest and most persistent sources of conflict between slave states and free states.

• 3. The Constitutional Compromise

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  At the Constitutional Convention of 1787, slavery nearly wrecked the entire project; delegates spent weeks arguing over it before agreeing to a compromise. That solution acknowledged slavery's existence without ever naming it directly in the document's text. Article 1, Section 9, Clause 1 barred Congress from banning the importation of slaves for 20 years, after which Congress could act. Even there, the delegates avoided the word slaves, calling them 'Persons' instead.

  The Act Prohibiting Importation of Slaves passed easily in 1807 and took effect on the 1st of January 1808. Banning the international trade backfired in one sense. It fueled a booming domestic slave trade instead, one that stayed legal until slavery itself ended in 1865. In the late 1850s, several Southern states pushed an unsuccessful campaign to reopen the international slave trade and restock their enslaved populations. The effort met strong opposition. A large natural increase in the slave population carried on through the late 18th and 19th centuries regardless. Some illegal smuggling of enslaved Africans continued anyway, by way of Spanish Cuba.

  The Three-Fifths Clause settled a different fight. It decided how much representation slave states would get in the House of Representatives and the Electoral College. That population, of course, had no vote of its own. Slave states wanted every enslaved person counted in full. Northern states argued that none should count at all. Elbridge Gerry asked why 'blacks, who were property in the South' should count toward representation 'any more than the Cattle & horses of the North.' The compromise landed at 60 percent of each state's disenfranchised slave population. By the 1860 census, that population was far from evenly spread. Enslaved people made up 57.2 percent of South Carolina's residents that year, compared with just 1.6 percent in Delaware.

• 4. Balancing The Senate

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  Louisiana joined the Union as a slave state in 1812. That began a stretch of nearly four decades in which slave-state politicians treated an even Senate as essential. Every state sent two senators to Washington regardless of its population. As long as slave states and free states were equal in number, the Senate stayed evenly split. That balance mattered most on questions important to the South. Free states, meanwhile, were growing faster and had already begun to dominate the House of Representatives. That left the Senate as slave-state politicians' last line of defense, the one place they could still block federal action on slavery. Their solution was to admit new states in matched pairs, one slave, one free, whenever possible, to keep that Senate balance from tipping.

  The Northwest Ordinance of 1787, passed just before the Constitution itself was ratified, banned slavery outright in the federal Northwest Territory. Its southern edge, the Ohio River, was treated as a westward extension of the Mason-Dixon line, the boundary that separated Maryland from Pennsylvania. New Englanders and Revolutionary War veterans, granted land in the territory, settled it in large numbers. All six states eventually carved from that territory became free states. Ohio came first, in 1803, followed over the decades by Indiana, Illinois, Michigan, Wisconsin, and finally Minnesota. By 1815, momentum for further anti-slavery reform had stalled. Roughly half the country, the Northeast and Midwest, was already free or committed to becoming so. The other half, the South, meant to keep slavery indefinitely.

  Indiana entered as a free state in 1816, and Mississippi followed as a slave state in 1817. Illinois joined free in 1818, matched by Alabama's admission as a slave state in 1819. Missouri's own bid for slave-state status set off the next crisis. It was resolved when Maine entered as a free state on the 19th of August 1821, in the deal known as the Missouri Compromise. Under that compromise, land from the Louisiana Purchase north of latitude 36 degrees 30 minutes, close to Missouri's southern border, was set to become free states. Missouri itself was the one exception, and land south of that line was reserved for slave states. The pattern continued into the 1830s and 1840s. Michigan entered as a free state in 1837, paired against Arkansas, admitted as a slave state in 1836. Iowa followed as a free state in 1846, paired against Florida, admitted as a slave state in 1845. Texas, admitted as a slave state in 1845, was eventually balanced by Wisconsin's entry as a free state in 1848.

  Texas brought its own complications beyond the Senate math. Anglo-American settlers had carried slaves into Mexican Texas even though Mexico had outlawed slavery across most of its territory in 1829, granting Texas an exemption. The settled part of Texas held rich cotton plantations built on slave labor. The Mountain West territory, won in the 1848 Mexican Cession after the Mexican-American War, seemed unsuited to either cotton or slavery.

  California entered the Union as a free state in 1850, under the Compromise of 1850, without a matching slave state admitted alongside it. To avoid handing free states an outright majority in the Senate, California was pressured into sending one pro-slavery senator and one anti-slavery senator to Congress. Minnesota's admission as a free state in 1858 broke that Senate balance for good. The rupture deepened the following year when Oregon entered, also free, leaving no slave state anywhere on the Pacific coast.

• 5. Fighting Over The Territories

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  By the 1850s, slave-state politicians were running out of places to put new slave states. That scarcity stalled the whole process of opening western territory to settlement. Some looked abroad instead. Efforts to annex Cuba, through the Lopez Expedition and the Ostend Manifesto of 1852, aimed at creating a new slave state there. So did a separate scheme to take Nicaragua, through the Filibuster War of 1856-57. Parts of northern Mexico drew the same interest, coveted by slave-state senators eager to expand the plantation system further south.

  In 1854, the Kansas-Nebraska Act replaced the Missouri Compromise with a new rule: popular sovereignty. It let white male settlers in each territory vote on whether to allow slavery there. Pro-slavery and anti-slavery settlers rushed into Kansas to win that vote, and the contest turned violent. Anti-slavery settlers, calling themselves Free-Staters and Free-Soilers, fought pro-slavery Border Ruffians who crossed over from Missouri, in a period later remembered as Bleeding Kansas. The violence escalated through the later 1850s into repeated skirmishes and destruction on both sides. An attempt to admit Kansas as a slave state, paired with Minnesota, collapsed because its proposed Lecompton Constitution had never been approved in an honest election. The North held the line, and Kansas never became a slave state. When Southern members of Congress walked out en masse in early 1861, Kansas was immediately admitted to the Union as a free state.

• 6. West Virginia's Contradiction

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  In Wheeling, Virginia, a Unionist government put forward a statehood bill asking Congress to carve a new state from 48 counties of western Virginia. That number would eventually grow to 50. The question of slavery held up the bill for months. In the Senate, Charles Sumner objected outright to admitting another slave state. Benjamin Wade took the opposite view, saying he would back statehood only if the new constitution included a gradual emancipation clause. Two senators, John S. Carlile and Waitman T. Willey, represented the Unionist Virginia government during the debate. Carlile insisted Congress had no right to force emancipation on the new state, while Willey offered a compromise amendment mandating gradual abolition instead. Sumner's own amendment failed, but the bill passed both houses of Congress carrying Willey's compromise, which became known as the Willey Amendment. President Lincoln signed the bill on the 31st of December 1862. Voters in western Virginia ratified the Willey Amendment on the 26th of March 1863.

  On the 1st of January 1863, President Lincoln issued the Emancipation Proclamation. It exempted the border states, four slave states loyal to the Union, along with some Union-occupied territory inside the Confederacy. Berkeley and Jefferson counties were added to West Virginia later that year. Slaves in Berkeley were not freed by that addition, while those in Jefferson County were. According to the 1860 census, those 49 exempted counties held about 6,000 enslaved people over 21 years old, roughly 40 percent of its enslaved population. None of them would be freed by the Willey Amendment. The amendment freed only children, either at birth or as they came of age, and it barred the importation of any more slaves. West Virginia became the 35th state on the 20th of June 1863, the last slave state ever admitted to the Union.

  Eighteen months after that admission, West Virginia's legislature abolished slavery completely within its own borders. On the 3rd of February 1865, the state legislature also ratified the Thirteenth Amendment to the Constitution. Under the Willey Amendment's original gradual schedule, though, the very last enslaved children covered by that 1863 law would not have come of age and gained freedom until 1884.

• 7. Slavery's Hidden Corners

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  Washington D.C. was carved from land ceded by two slave states, Maryland and Virginia. The Compromise of 1850 outlawed the slave trade within the district itself. Alexandria County, home to slave-trading firms such as Franklin and Armfield, asked to be returned to Virginia instead, where that trade remained legal. The transfer happened in 1847. Slavery itself stayed legal in the district until 1862, when Congress passed the DC Compensated Emancipation Act over fierce objection from slaveholding residents. Some enslavers simply ignored the new law and tried to keep people in bondage anyway. In July 1862, Congress passed a supplemental law letting those victims file petitions on their own behalf.

  Utah would not become a state until 1896. As an organized territory, though, it legalized slavery in 1852. That came through the territorial Act in Relation to Service and a companion Act for the Relief of Indian Slaves and Prisoners. Brigham Young and his party of Mormon pioneers had reached Utah in 1847, during the Mexican-American War, while the land still belonged to Mexico. They ignored Mexico's ban on slavery there and treated the practice as consistent with Mormon views on Black people. On the 19th of June 1862, Lincoln signed a law ending slavery in Utah Territory and every other U.S. territory. That fulfilled part of his 1860 campaign platform.

  California's own constitution banned slavery outright, yet an 1850 law, the Act for the Government and Protection of Indians, still allowed the forced indenture of Native Californians. It let Whites apprentice or indenture Indian children directly. It also punished any Indian deemed vagrant, hiring them out to the highest bidder at a public auction if they could not post bond. Settlers took somewhere between 10,000 and 27,000 Native Americans in California as forced laborers under that system, among them between 4,000 and 7,000 children. In April 1863, after the Emancipation Proclamation had already been issued, California's legislature finally abolished every form of legal indenture and apprenticeship for Native Americans.

• 8. The End Of The Divide

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  When the Civil War began, the country held 34 states in total, 15 of them slave states. Eleven of those slave states seceded after formal conventions, forming the Confederate States of America and sending representatives to its Confederate Congress. The remaining border states, Delaware, Maryland, Kentucky, and Missouri, stayed in the Union. Kentucky and Missouri, though, each also had rival Confederate governments claiming to speak for them. Nevada, a free state carved from the West, joined the Union the following year, in 1864.

  By the time the Emancipation Proclamation took effect, Tennessee already sat under Union control, so the Proclamation applied only within the ten remaining Confederate states. President Lincoln required any Confederate state to abolish slavery before it could be readmitted to the Union. In practice, freedom for enslaved people across the South depended entirely on the Union army physically taking their area. The Proclamation, after all, could only reach territory still held by the Confederacy on paper.

  Union forces kept advancing across the South for two and a half more years. Freedom spread only as that ground changed hands, a process that did not finish until the 19th of June 1865. The Restored Government of Virginia was the Unionist administration still holding territory that had not broken off to form West Virginia. It voted to end slavery at a constitutional convention on the 10th of March 1864. Arkansas, partly under Union control by then, adopted an anti-slavery constitution on the 16th of March 1864. Louisiana, much of it occupied by Union forces since 1862, abolished slavery through a new constitution that voters approved on the 5th of September 1864. Among the border states, Maryland abolished slavery on the 1st of November 1864, and Missouri followed on the 11th of January 1865. Tennessee, under Union occupation, ended slavery by popular vote on a constitutional amendment that took effect on the 22nd of February 1865. Slavery still persisted legally in Delaware, Kentucky, and, to a limited extent, New Jersey. That lasted until the Thirteenth Amendment to the Constitution was ratified on the 18th of December 1865. The amendment abolished slavery throughout the United States, with one narrow exception: punishment for a crime.