How The States Got Their Shapes Too Part 11

Rocky Mountain Rogue?

Gov. Steele informs his const.i.tuents ... that "the eyes of the Union are upon them." ... The eyes of the Union, we venture to say, have not even discovered the Territory.... Not one man in five hundred, we presume, in the country at large, is aware of the existence of any such political community as the Territory of Jefferson. In point of fact, it has as yet no legal existence.

-NEW YORK TIMES, NOVEMBER 26, 1859 In the winter of 1859, a group of gold prospectors and miners in the Pikes Peak region of the Rocky Mountains idled away the time until the snow melted by deciding to take the law into their own hands and form a territory. No matter that they were already in a duly const.i.tuted U.S. territory, that being Kansas (which at the time extended west to the crest of the Rockies). The boundaries the mining men stipulated for their "Territory of Jefferson" went beyond the western region of Kansas, extending into the Nebraska Territory, Utah Territory, and New Mexico Territory.1 Territory of Jefferson, 1859-61 The idea had originated a year earlier and spread rapidly among the men working in the gulches and ravines. Spending the upcoming winter making their own territory would be a welcome alternative to drinking, brawling, and shooting each other. When the snows began, they held a convention, sent a proposal to Congress, and, when Congress did nothing, elected as their governor Robert W. Steele, a man who had been in the region less than a year. He and the legislature elected along with him then proceeded to write themselves a const.i.tution and laws. Legally speaking, it was all very woolly.

Robert W. Steele (1820-1901) (photo credit 33.1) Were these just a bunch of bewhiskered varmints thinking they could simply take control? One need only glance at their legislation. Take, for example, their law for evicting some scoundrel or squatter from one's property. "Judgment of forfeiture and eviction," it began, "may be rendered against the defendant whenever the amount of damages so recovered is more than two-thirds the value of the interest such defendant has in the property wasted, and when the action is brought by the person ent.i.tled to the reversion." That sounds like lawyer talk, and indeed it was. Steele was a lawyer, and he had been a member of the Nebraska territorial legislature.2 While he was serving in that legislature, word came of gold in the foothills of Pikes Peak. After his term expired, Steele set out for the region, established a stake and a homestead, and was soon joined by his wife and children.

Steele was clearly not a woolly varmint. Indeed, he and his cronies were trying to rein in the woolly varmints. Being hundreds of miles from the nearest Kansas sheriff, the region's bandits, disputants, and liquored-up miners were misbehaving with impunity in the settlements that had sprung up in a matter of months. In lieu of threats, a.s.saults, murders and vigilantes, Steele and his cohorts sought to subst.i.tute due process of law.

The Territory of Jefferson, which at first glance appears to have been a wild and rebellious creation, was actually the opposite. Its founders were seeking to create a government only because the established governments-both in Kansas and Congress-had failed to do so.

In fairness to Kansas, only a year earlier this western region of its sprawling territory had been nothing but desolate hills, described in an earlier military exploration as "uninhabitable by a people depending upon agriculture for their subsistence."3 When the discovery of gold suddenly brought hordes of inhabitants, Kansas, itself only four years old, had its hands full with the much bloodier issue of slavery.

Kansas struggled during its first four years to decide whether or not to permit slavery, as permitted in the Kansas-Nebraska Act. Among the thousands of advocates, pro and con, who entered the state to vote on this issue, many joined paramilitary armies that attacked each other's settlements in pitched battles. Flattered as Governor James Denver may have been to have a gold rush town named after him, deciding whether to deploy his overwhelmed resources toward the suppression of paramilitary armies close to home or brawlers and gun slingers in the western mountains was a no-brainer.

Congress too could have stepped in by acting upon the proposal sent by the men who had convened at Denver. Indeed, Congressman Alexander Stephens proposed the creation of a Territory of Jefferson in January 1859. But Stephens, a Southerner, had been the floor manager for approval of Kansas's first proposed const.i.tution, which was proslavery. That effort failed. This one was relegated to a committee. Slavery continued to paralyze Congress.

The mining men responded by simply declaring themselves a territory and holding their first election. Governor Steele deftly navigated the legal white water. To avert conflict with Kansas or Congress, should they seek to act upon their jurisdictions, his administration always included the word "provisional" in its territorial doc.u.ments. Although its provisional laws specified the taxes it would levy and the salaries it would pay, Steele received no compensation nor authorized payments to anyone. Likewise, his administration collected no taxes, since Steele knew that any revenue they received could be challenged-probably successfully-in federal court.4 When elections for the legislature were held again the following year (after Congress again failed to act), Steele cautioned the candidates, "All persons who expect to be elected to any of the above offices should bear in mind that there will be no salaries or per diem allowed from this territory."5 Steele and his colleagues also averted conflict regarding the ad hoc miners' courts that had previously sprung up in various camps. While the provisional laws of the Jefferson Territory established county courts, district courts, and a supreme court, they also included the miners' courts. This provision limited the miners' courts to disputes regarding "mining claims and miners' interests." But no effort was ever made to a.s.sert the jurisdiction of a county court over a miners' court-though litigants often disputed which of the two illegally created venues was the appropriate venue.6 On January 30, 1861, Congress again took up a motion to create the Jefferson Territory. This time, rather than being relegated to a committee, the motion was subjected to debate, with ensuing arguments over whether to name the territory Jefferson or Idaho or Colorado. Colorado won out, and three weeks later President Buchanan's signature turned the less-than-legal Jefferson Territory into the fully official Colorado Territory.

Why was it suddenly so easy? Earlier that month, Mississippi, Florida, Alabama, Georgia, and Louisiana had seceded from the Union and were no longer partic.i.p.ants in the issue. South Carolina, too, was gone, having left in the previous month.

Steele had achieved his goal, but it cost him his job. The national crisis caused by secession, which enabled Congress to create Colorado, also caused outgoing President Buchanan, a Democrat, to put country above politics and leave the appointment of a territorial governor to his Republican successor, Abraham Lincoln. President Lincoln appointed William Gilpin, a Republican, to replace Steele, a Democrat. Party affiliation, however, was only one element in the decision. Though Steele had legal and governmental expertise, that contribution was now in place. Gilpin had a military background and a wide-ranging knowledge of the western territories. If war commenced, his military skills would be of more value.

Steele, for his part, recognized this. He issued a proclamation dissolving the Jefferson Territory and urging the citizens of the Colorado Territory to remain "loyal and true" to the U.S. government.

Robert W. Steele's days in the limelight were over. He returned to his work in the mining industry and, four years later, moved with his family to Iowa to secure better educational opportunities for his children. But he had been a father of Colorado as well, and he later returned to his out-of-wedlock territory, living to see it become the nation's thirty-eighth state. He pa.s.sed away in Colorado Springs in 1901 at the age of eighty-one, surrounded by his family.

WEST VIRGINIA, VIRGINIA.

FRANCIS H. PIERPONT.

The Battle Line That Became a State Line

The consent of the legislature of Virginia is const.i.tutionally necessary to a bill for the admission of West Virginia becoming a law. A body claiming to be such legislature has given its consent. We cannot well deny that it is such, unless ... [it] was chosen at elections in which a majority of the ... voters of Virginia did not partic.i.p.ate. But it is a universal practice ... to give no legal consideration whatever to those who do not choose to vote.

-ABRAHAM LINCOLN1 In the U.S. Capitol's Statuary Hall, Francis H. Pierpont stands commemorated in marble as "the Father of West Virginia." Yet, technically, he never lived in West Virginia until five years after it became a state. "Technically," however, is no small matter in this instance. It is what gave birth to West Virginia: a technicality discovered, and put to use, by Francis Pierpont.

West Virginia became a state in the midst of the Civil War. Previously, it had been part of Virginia, which encompa.s.sed the Tidewater region (its flat coastal lands), the Piedmont (its rolling hills leading west to the Blue Ridge mountains), the Shenandoah Valley (between the Blue Ridge and the Alleghenies), and western Virginia (the Alleghenies and the land beyond to the Ohio River).

One could say that after Virginia seceded from the Union, western Virginia seceded from Virginia. Legally, that was precisely what it did not do. Since the federal government considered it illegal to secede from the Union, it would have also considered it illegal for western Virginia to secede from Virginia. Thus, for western Virginia to secede from Virginia, it had to devise an approach rooted in the illegality of secession.

Francis H. Pierpont (1814-1899) (photo credit 34.1) Virginia at the onset of the Civil War But why would western Virginia have wanted to secede from the revered and influential Old Dominion? The short answer is that the region opposed slavery, but there was more to it than that. Most of its residents did oppose slavery, though their righteousness was likely b.u.t.tressed by the fact that most could not afford them. The region's mountainous topography was poorly suited to agriculture. Its mountains, moreover, were ideally suited for escape.

But western Virginia's wish to secede resulted more directly from an issue at one remove from the slavery conflict. Slaves in Virginia were counted as three-fifths of a person for purposes of apportioning representation in the state legislature (though, of course, slaves could not vote). This formula reflected that which had been used in the U.S. Const.i.tution, and it resulted in slave regions having greater representation than nonslave regions. Western Virginians repeatedly sought to abolish the use of that formula in the Virginia state const.i.tution.

Disproportionate representation was made even more disproportionate by the fact that the authors of Virginia's const.i.tution (among them, Thomas Jefferson, James Madison, and George Mason) had embedded a property-value requirement for voting in the doc.u.ment. Because many western Virginians barely eked out a livelihood in their hardscrabble terrain, this requirement created a further disparity in representation.

The anger of western Virginians would have been among Francis Pierpont's earliest memories. As far back as 1817, when he was a three-year-old on the family farm and tannery, the region's discontent was surfacing in newspapers. Was.h.i.+ngton, DC's National Advocate quoted one of the region's residents: "Western Virginia is ruled with a rod of iron; and unless ... we can obtain a change in some manner, our castigation will be so severe that we shall not be able to bear it. We are treated ... as a deserted step-child, instead of the legitimate offspring of Virginia."

Virginians who supported the property requirement for voting feared that giving voting representation to those without a certain level of wealth would "transfer power into entirely new hands," resulting in "many evils and inflict crying injustice."2 In 1830, however, the mounting discontent in western Virginia over the issue of representation caused the state to hold a new const.i.tutional convention. Ironically, the property requirement for voting resulted in western Virginians being as underrepresented at the convention as they had been in the legislature. As a result, only marginal changes were made in the 1830 const.i.tution, and they backfired. As the National Journal commented, "That section of the state will never be satisfied to remain a portion of the Old Dominion unless there shall be a still further extension of the right of suffrage."

Ten years later, the 1840 census introduced a new element into the equation-one that riveted the attention of the nation's antislavery movement. The Liberator reported in March 1842: The recent census develops the fact that a majority of the white population [of Virginia] lies west of the Blue Ridge, in the free labor part of the State. Yet the eastern counties have nearly three-fourths of the political power by the amended const.i.tution.... The subject is now before the legislature, and the [antislavery] Richmond Whig advises the Western Virginians to demand either concession to their demands or the formation of a new State, bounded east by the Blue Ridge.

Though the abolitionist press focused exclusively on the slavery aspect of the dispute, underrepresentation continued to spark complaints among western Virginians regarding inequitable schools, roads, and railroads.3 Pierpont was, by this time, a successful attorney in western Virginia. With only intermittent months of education available at a local one-room school, his parents had encouraged him to read what books they had and to seek a college education. But no college existed in western Virginia until after Pierpont had entered Allegheny College in northwestern Pennsylvania. After graduating with honors, he became a schoolteacher near his home in Fairmont. Many Americans were migrating westward at the time, and Pierpont too chose to relocate. He, however, went south, becoming a teacher in Pontotoc, Mississippi, for reasons no longer known. Whatever the reasons, the choice displayed a recurring pattern in Pierpont's life: his willingness to embark with others on a major move, yet moving in his own direction.

During his years as a teacher, Pierpont was also learning law. After returning home in 1841, he became a licensed attorney. His keen legal mind won him the Baltimore and Ohio (B&O) Railroad as a client, representing its interests in nearby counties. After the Virginia legislature yielded in granting the B&O permission to lay track in western Virginia, the railroad's main line ended up pa.s.sing through Fairmont, near to which he opened a coal mine. By the early 1850s he was a wealthy and prominent man, married to a well-bred, abolitionist wife from the North.

Also by the early 1850s, the next census had shown that over 10,000 more whites now lived in western Virginia than in the rest of the state. At the same time, the conflict between western Virginia and the rest of the state regarding slavery had also grown by leaps and bounds (as it did nationwide following the tumultuous Compromise of 1850). In 1851 presidential aspirant Daniel Webster cast his strongly pro-Union gaze on western Virginia, in a speech closely followed nationwide. "Ye men of Western Virginia ... what course do you propose to yourselves by disunion? If you secede, what do you secede from, and what do you secede to?" Webster asked, imploring the people of the region to consider that their economy was more connected to the nation's hinterland than to the rest of Virginia. "Do you look for the current of the Ohio to change, and bring you and your commerce to the tide-waters of eastern rivers? What man in his senses can suppose that you will remain part and parcel of Virginia a month after Virginia should have ceased to be part and parcel of the United States?"4 Four months later, Virginia sought to consolidate the loyalty of its western residents by ratifying yet another const.i.tution, this one extending voting rights to all white male residents over twenty-one, regardless of whether or not they owned any property. But it was too late. Though it resolved the conflict over representation, the conflict over slavery now dominated the political landscape, and the new const.i.tution did not move that mountain.

The equation changed yet again on November 6, 1860, the day Lincoln was elected president. One month after his inauguration, Virginia voted to secede. Pierpont, a delegate to that April 1861 convention on secession, hurried home with the news. His longtime friend Alston G. Dayton later recalled: The people stood and listened dumbfounded.... They gathered in knots on the streets and corners in the towns and villages, at the country stores and crossroads, and with bated breaths whispered to each other, "What does it mean?" ... [But then] they began to ask ... why should they be menaced, devastated, destroyed, because the seash.o.r.e planters will it so? ... Their anger rose to fever heat.... They would protest. They would have another convention.... They would secede from the seceding Virginia.5 Within a month, western Virginians did indeed convene in Wheeling to decide upon a course of action. Leading the effort to secede from Virginia was John S. Carlisle. Pierpont opposed Carlisle's proposal. He pointed out that, because the federal government maintained that states could not secede from the Union, it could not then recognize a state that had seceded from its parent state. Moreover, he cited the clause in the U.S. Const.i.tution that declares, "no new States shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned as well as of the Congress." Since Carlisle's proposal would erect a new state within the jurisdiction of Virginia, Virginia would have to consent, and that was not going to happen.

Pierpont's insights shattered the unity at the Wheeling convention. Anger and recriminations replaced determination during subsequent sessions, until Pierpont himself discovered a way to thread a legal needle that would repair the damage and create the state. His scheme was later recounted by Dayton: Virginia was still in the Union; only her officers had abandoned their trust.... Virginia was ent.i.tled to her representatives in Congress, to elect her legislative agents.... If a legislature thus elected under the law saw fit to grant permission to the counties west of the Alleghenies to form a new State, then the requirement of the federal Const.i.tution would be fully and legally met. If the counties east of the Alleghenies did not want this permission given, let them ... elect their accredited members.h.i.+p to the legislature and vote the proposition down.... It was plain sailing after Pierpont had found the way.

Whether the delegates to the convention reacted with stunned silence or with chortles is not recorded. Pierpont was proposing a four-step legal maneuver. Step one entailed declaring that, since Virginia's elected officials had (from the federal government's perspective) abandoned their offices, a new election would be held in Virginia to replace them. Voters throughout the state could, as in any election, choose to vote or not. Unspoken, but obvious to all, was that those voters who supported secession would not invalidate their claim by voting in an election for a Virginia that claimed to be part of the United States. In addition, the Confederate army, present throughout nearly all of the slave-holding regions of Virginia, would never permit such an election. In effect, only western Virginia (where the Union army had already established itself) would vote. Step two would be to get the U.S. Congress to recognize and seat those elected as the duly authorized replacement representatives of Virginia. Once thus recognized, step three consisted of creating the new state by complying with the U.S. Const.i.tution. To do so, the replacement legislature of "Virginia" would pa.s.s a resolution calling for a statewide referendum on whether or not to allow western Virginia to form itself into a separate state. As with the election of replacement officials, the referendum would be, theoretically, statewide-though here too it was obvious that only voters in western Virginia would partic.i.p.ate. Once statehood was approved by those who voted, step four consisted of completing the const.i.tutional requirement by formally seeking acceptance of the new state from the U.S. Congress.6 It was fiendish, it was brilliant, and it worked. In May 1861 Pierpont was elected governor of what was called "the replacement government of Virginia," and in June Congress officially seated its representatives to the House and Senate. In August the new "Virginia" legislature pa.s.sed a resolution enabling the state to hold a referendum on whether or not to allow a new state to be created from Virginia's western region. The referendum took place in October. As before, voting took place only in western Virginia. Since Virginia's const.i.tution required voting to be done by voice, not by secret ballot, the referendum was overwhelmingly approved. Consequently, another convention was held, this one to write a const.i.tution for the new state. That const.i.tution was then sent to Congress for final approval.

Here, however, the plan began to unravel. While Congress had played along with the charade of seating representatives from "Virginia," recognizing "Virginia's" approval of West Virginia's creation was another question. Kentucky Senator Lazarus W. Powell put the cards on the table: I do not believe it was ever contemplated by the Const.i.tution of the country, that less than one-fourth of the people const.i.tuting a State should, in revolutionary times like these, form themselves into a legislature and give their consent to themselves to form a new State within the limits of one of the States of this Union. It is inaugurating a principle that, in my judgment, is dangerous.

Ohio Senator Benjamin Wade was unimpressed. In his view, because the South had abandoned the Union, Congress was not playing with a full deck: If all was calm, if all was peace, if all was just as it should be, then to tear old Virginia asunder might cause a commotion that would induce men to hesitate.... Now is the time for great events, when you can see that a commotion in the land has brought it within the compa.s.s of your power to do a great and mighty good, to perform it. To treat the fact of that commotion as a reason why you should not do it is the narrowest statesmans.h.i.+p in the world.

The times were such that paradoxes-and brute force-ruled. The Senate ultimately pa.s.sed an amended statehood bill by a vote of twenty-three to seventeen; the House pa.s.sed it ninety-six to fifty-five. The amendment stipulated that the West Virginia Const.i.tutional Convention insert language into the doc.u.ment explicitly ending slavery.

The reason such language was not already in the proposed const.i.tution was that two of the counties that had voted in favor of creating West Virginia were at the northern end of the fertile and slave-holding Shenandoah Valley, where the presence of Union troops had enabled a vote to be taken. Some in Congress questioned the logic of including these counties, separated by mountains from the rest of western Virginia. But it wasn't just those two Shenandoah Valley counties western Virginians dreamed of possessing. "Virginia" Senator John Carlisle maintained that all the land west of the Blue Ridge mountains should compose the new state.

Top of the Shenandoah Valley Western Virginians were not alone in urging Congress to include the Shenandoah Valley in the new state's boundary. The B&O Railroad, another powerful interest (closely connected to Pierpont) urged it as well. The North's southernmost railroad was a Confederate target no matter what, boundaries being meaningless in wartime. But the B&O, looking ahead to the postwar period, knew that it would be better off having none of its track under Virginia's jurisdiction.7 Senator Carlisle spoke for both parties when he beseeched the Senate to locate West Virginia's eastern boundary farther east, "including the counties in the valley, which properly belong, in a commercial aspect, to the same trading community that we do. But we can at least do this: we can secure the counties through which the Baltimore and Ohio Railroad pa.s.ses." West Virginia, as it turned out, did not get everything it wanted, but the B&O did.

West Virginia's statehood convention modified its proposed const.i.tution as directed by Congress, and President Lincoln signed the legislation. Come June 20, 1863, West Virginia would officially become a state. Meanwhile, the Confederate army was approaching in full force. General Robert E. Lee and all of his corps-the commands of Generals James Longstreet, Richard Ewell, A. P. Hill, and J. E. B. Stuart-were moving up through much of what was scheduled to become West Virginia. "We direct particular attention to the following dispatch from Governor Pierpont of Virginia.... The rebels are advancing in force, and are only about nineteen miles distant from this city [Wheeling]," a Pennsylvania newspaper reported one day before the state's official creation. "If ever there was a time for the citizens of western Pennsylvania to awaken in earnest, before the horrors and civil war are actually thrust upon their homes and firesides, now is the time."8 West Virginia: idealism versus realism As it happened, the storm clouds did not burst until two weeks after West Virginia's birth. When they did, it was indeed in Pennsylvania, at the previously sleepy town of Gettysburg. During that military hurricane, Francis Pierpont was unpacking doc.u.ments in Alexandria, Virginia. The father of West Virginia was still the governor of "Virginia." He opted to remain in that post, in the hope that he could better serve the Union in that capacity.9 At the moment, however, there was only one place in what now remained of Virginia where he could safely locate his "government." The town of Alexandria, just across the Potomac River from Was.h.i.+ngton, DC, though Confederate in sympathies, was heavily occupied by Union troops protecting the nation's capital.

With the end of the Civil War, Pierpont's hopes of serving the Union by remaining in office were given the boot. Authority now resided with General John M. Schofield, who oversaw Virginia during Reconstruction. In effect, Pierpont went from being the governor of "Virginia" to being the "governor" of Virginia. But the lawyer in him continued to act on behalf of those he represented. He sought to have voting rights restored to Virginians who had served in the Confederate army, while at the same time he advocated the creation of schools for newly freed slaves. His commitment to equal justice eventually angered enough people-from ex-Confederates to progressives-that he was removed from office by General Schofield in 1868.

Returning to his hometown, Pierpont lived for the first time in the new state he had done so much to create. Virginia, meanwhile, had commenced a const.i.tutional challenge by suing West Virginia over its possession of Berkeley and Jefferson Counties. In 1871 the Supreme Court rejected Virginia's challenge. As significant as the decision itself was the extent to which it was covered in the press, which was precious little. Americans now had, and for many decades would continue to have, little interest in revisiting the issues of the Civil War-be it the const.i.tutionality of West Virginia or the const.i.tutionality of racial segregation.

Francis Pierpont lived out the rest of his life quietly. He pa.s.sed away in 1899 at the age of eighty-five and was buried alongside family members in his hometown of Fairmont, now in West Virginia. Though West Virginians too did not wish to revisit the past, they did wish to revisit Francis Pierpont. An obituary in Utah's Salt Lake Tribune noted that his "remains lay in state in the [family's] church, and were viewed by thousands of people. The casket was almost buried in flowers."

NEW MEXICO, ARIZONA.

FRANCISCO PEREA AND JOHN S. WATTS.

Two Sides of the Coin of the Realm

Mr. Perea of New Mexico Territory: I ask the unanimous consent of the Convention to allow the delegates from New Mexico to record their votes for President and Vice-President of the United States.

Chairman: The motion is not in order.

Mr. Watts of New Mexico Territory: Mr. Chairman, we are ready to pour out our life-blood in carrying your glorious heaven-born banner wherever the honor of our country requires it to be carried. We feel as patriotic and as much disposed to sustain it as any other portion of the country, and I hope that we shall not be denied the privileges which have been granted to other sister Territories upon this floor. I want an opportunity to record our votes for Abraham Lincoln and Andrew Johnson.

-REPUBLICAN PRESIDENTIAL CONVENTION, 1864 Francisco Perea and John S. Watts, sixteen years apart in age, had only recently gotten to know one another when they jointly sought to have the Republican Party include New Mexico's vote. Yet prior to their relations.h.i.+p, both played key roles in defusing an explosive situation that followed the United States' 1848 acquisition of New Mexico (and a great deal more) in the Mexican War. The danger was that, in acquiring the land, the United States had also acquired people who spoke another language and had not sought to become Americans.

Francisco Perea (1830-1913) (photo credit 35.1) Watts and Perea's leaders.h.i.+p had little to do with the fact that one was Anglo and the other Hispanic. Neither group was of one mind regarding New Mexico's future. Their leaders.h.i.+p resulted from the fact that both men comprehended those complexities. Their success as leaders can be seen today in the seemingly simple straight line dividing New Mexico and Arizona.

John S. Watts (1816-1876) (photo credit 35.2) New Mexico's complexities were embedded in the orders General Stephen Kearny received after capturing Santa Fe in the opening year of the Mexican War. "In your whole conduct you will act in such a manner as best to conciliate the inhabitants," the secretary of war had instructed, "and render them friendly to the United States." Hardly complex orders in theory, but in practice they entailed considerable complexity. The first complication surfaced when the general issued a set of laws to govern New Mexico. Collectively known as the Kearny Code, they adhered to the secretary of war's orders by leaving in place the region's Mexican laws and guaranteeing freedom of religion, freedom of speech, the right to a.s.semble-indeed, everything in the Bill of Rights with one exception: the right to bear arms.

The part of the Kearny Code that proved to be dicey-and that later affected Perea, Watts, and the Arizona boundary they sought-was its opening statement. "The country heretofore known as New Mexico," it benignly began, "shall be known hereafter and designated as the territory of New Mexico, in the United States of America." Sounds simple enough ... unless one should ask (and many did): what was "the country heretofore known as New Mexico"?

To New Mexicans, the answer was clear and important. Nuevo Mejico had been a province in Mexico that extended north along the Rio Grande valley from what is now the Mexican border. But after Tejas won its independence from Mexico in 1836, becoming the Republic of Texas, it claimed the Rio Grande valley on the Texas side of the river. Mexico never accepted this claim. When Texas later joined the United States, Congress stipulated the Rio Grande as its western border, and the Mexican War began.

New Mexico Territory, 1848-50 While the implication in General Kearny's statement might go unnoticed today, Congress and President James K. Polk spotted it at once and rejected it, since it was unconst.i.tutional to create a new jurisdiction that altered an existing state line without the consent of that state. Nevertheless, four years later Congress found a way to grant New Mexico's wish via the nation's enduring curse: slavery.

The Compromise of 1850 was delicately held together in part by adding an additional issue to the deal: the Texas-New Mexico border. Texas had acquired enormous debt during its days as a republic. Under the compromise, Congress enabled Texas to pay off its debt by purchasing a large block of its western region, which it then gave to the New Mexico Territory. For some reason, New Mexico's new boundary, the 103rd meridian (later found to have been inaccurately surveyed), was considerably farther east than the Rio Grande Valley. Though unstated, the reason was not lost on a newly appointed territorial judge being sent to New Mexico, John S. Watts.

Watts had recently arrived from Indiana, where he had spent his youth, become a lawyer, and served for a term in the state legislature. He got along well with the New Mexicans and did well for himself, too. After a few years as a judge, he resigned to go into private practice, specializing in Hispanic land claims. His clients were not the campesinos scratching out a meager living on parched parcels; they were the grandees, the wealthiest families with Spanish land grants that encompa.s.sed thousands of acres. In some instances, Watts did work for no money, accepting land instead. He soon became both wealthy and well connected with the region's leading families.

When Watts had first headed to Santa Fe, young Francisco Perea, who came from a prominent Nuevo Mexicano family, was heading to St. Louis. He had just finished college in Manhattan at the Bank Street Academy. During the years that Perea was away, a new fuse was lit in New Mexican politics. In 1853 James Gadsden purchased a region of Mexico on behalf on the United States. The region, which was added to the New Mexico Territory, was needed to build a second transcontinental railroad through the South. Northern states believed such a railroad would provide new economic opportunities in the South and help wean it away from slavery. Southern states believed such a railroad was vital for slavery to survive. They saw it as linking the slave state of Texas to the slavery-still-possible state of California. The only territory in between was New Mexico.

Slavery had been abolished in Mexico in 1820, and Mexican law had been preserved in New Mexico. This was the new fuse that Congress lit when it officially created the Territory of New Mexico as an adjunct to the Compromise of 1850. In return for granting New Mexico's dream of regaining its former land, it loosened the bolts on its inherited law by saying this particular territory could decide for itself whether or not to permit slavery.

Few if any Hispanics aspired to become slave owners. But all remembered that their nemesis, Texas, had begun organizing its War of Independence when Mexico had banned slavery. The same thing was now happening again. "A large number of delegates from different parts of the Gadsden Purchase a.s.sembled at Tucson for the purpose of taking into consideration the measures necessary for the organization of a Territorial government," the New York Herald reported in November 1856. "Many emigrants from Texas this year have stopped in the Purchase, and doubtless if the new territorial government were formed it would soon fill up with a hardy, industrious American population." The boundaries the Anglos in the Gadsden Purchase had in mind for "Arizona," as they called it, encompa.s.sed the southern half of the New Mexico Territory-thereby bordering both Texas and California.

Hispanics in New Mexico liked the idea of creating a separate territory composed primarily of the Texas transplants. But dividing the territory horizontally would put the planned transcontinental railroad in Arizona. In seeking a vertical division, many New Mexicans thought it wise to espouse nonconfrontational views on slavery so as to minimize Southern support for the "Arizonans."

Though Watts was an Anglo, his career was based in the Hispanic community. And though he hailed from Indiana, where slavery had never been permitted, he too adopted less-than-abolitionist views regarding slavery-though he joined the new Republican Party, which came into existence primarily for the purpose of opposing slavery.

All these elements accelerated with the candidacy of Abraham Lincoln in 1860. Perea was in San Francisco the night Lincoln was elected. He later recalled, "The occasion was celebrated by immense processions of men and boys marching through the princ.i.p.al streets to the music of many bra.s.s bands, the firing of cannon, and the discharge of anvils. It is needless to say all of us New Mexicans heartily joined in to swell the throng."1 Perea now returned to New Mexico just as Watts was leaving it. Watts was headed to Was.h.i.+ngton, having been elected the territory's delegate to Congress. In letters to President Lincoln, he urged him to choose New Mexicans for the territory's appointed positions, despite the fact that New Mexico's leading citizens were ambivalent about slavery. He warned that appointing outsiders would offend New Mexicans, pointing out that slavery was not their foremost concern (Texas was). By choosing New Mexicans, the president would win their hearts and, should war erupt, their loyalty.2 Lincoln heeded this advice, though he took a lot of heat for it. Watts's insights proved to be right. The man who proved it was Francisco Perea.

Perea had returned to discover that his birthplace was in crisis. As Southern states began seceding from the Union, Anglos in the Gadsden Purchase began seeking the establishment of a Confederate Territory of Arizona. Traveling throughout the Rio Grande valley, Perea visited the leading Hispanic families and urged them to commit their loyalty to the United States. His efforts succeeded. Hispanic New Mexico produced a greater percentage of volunteers for the Union army than any other state or territory.3 Perea's success validated not only Watts's advice regarding appointments but also Watts's insight regarding New Mexico's fear of Texans. Perea's most effective argument for loyalty to the Union was that if the Confederacy accepted Arizona as a territory, it would send Texan troops to defend it.

And indeed they did. In July 1861 the Second Regiment of Texas Mounted Rifles entered the Gadsden Purchase. Perea had enlisted in the Union army, where he commanded one of the brigades a.s.signed to oust the Texas troops. Over the course of several battles, Union forces finally prevailed.

Watts, meanwhile, was fighting the battle of the boundary. He introduced a bill in Congress for the creation of an Arizona Territory that would be divided by a vertical line along the 109th meridian. New York Congressman William A. Wheeler argued that dividing the territory was unnecessary, noting that the only logic for the location of the proposed Arizona-New Mexico border was that it continued the line dividing Utah and Colorado. When Watts responded with the reason for its location, he also shed light on why the Texas-New Mexico line had been located so far east of the Rio Grande valley. Because of the location of that Texas-New Mexico line, Watts pointed out that his proposed Arizona-New Mexico line "divides the Territory of New Mexico into two equal parts."

The boundary battle, however, was about more than geographic equality. It was also about ethnic equality. Watts knew that this moment, on the floor of the House of Representatives, was the time and place to attack this head on: There may be a well-grounded dispute in the minds of some people as to who are white and who are black. [Laughter] There are many men in the Territory of New Mexico who, by living constantly in the open air and exposed to the rays of a burning sun, have become bronzed in complexion.... Whatever may be their color, the treaty stipulations between the United States and the republic of Mexico have invested them with all the privileges and immunities of American citizens.... [T]he first duty which the government owes to its people is to give both military and civil protection. In this case, the government is under a double obligation.... [Mexico was] compelled to relinquish her right to a portion of her territory and her right to protect a portion of her people, endeared to her by ten thousand pleasant memories and hopes, and doubly endeared by ten thousand painful forebodings for the future.

Watts linked this understanding of the Hispanic population's experience with the issue of boundaries: I know how the people of New Mexico felt-I know how I felt-when a preceding Congress, merely for the purpose of beautifying the lines of the new Territory of Colorado, took sixty miles broad and two hundred and fifty miles in length from the Territory of New Mexico. Yes sir, Congress took those people and put them with a people alien in laws, alien in language, alien in a.s.sociation.

On February 24, 1863, Congress created the Territory of Arizona, stipulating the boundaries advocated by Watts on behalf of his Hispanic const.i.tuents.

Though Watts remained active in Republican politics, he chose to return to his law practice. Following that year's November elections, John C. Watts introduced President Lincoln to New Mexico's newly elected territorial delegate, Francisco Perea.

MONTANA, IDAHO.

SIDNEY EDGERTON AND JAMES ASHLEY.

Good as Gold

Gov. Edgerton was not a member of the Committee on Territories, and I never heard of his having anything to do, directly or indirectly, with the organization of the territory of Montana or with fixing its western boundary.

-JAMES M. ASHLEY I had many interviews with Gov. Ashley, who was a strong supporter of the bill [to create Montana] and, as chairman of the Committee on Territories, had a great influence.