What History refuses to teach. Originally published by Chet McAteer;
WHAT MONTGOMERY REFUSED TO WRITE:
Jefferson Davis and the Collapse of the Pure Slave Republic Myth
To understand the Confederate Constitution you have to understand the man the convention called to lead it, because the caricature of Jefferson Davis as a fanatical slave empire builder collapses the moment you follow his actual political life.
Davis was born on the frontier in Kentucky in 1808, raised in Mississippi, educated at Transylvania and West Point, a regular army officer who left the service for his plantation Brierfield, then returned to lead Mississippi volunteers with distinction in Mexico at Buena Vista.
He entered Congress in 1845, the Senate in 1847, and by the 1850s he was one of the most respected Constitutionalists in Washington. As Secretary of War under Franklin Pierce from 1853 to 1857 he modernized the army, pushed scientific exploration, championed the, authorized the camel corps experiment, and fought for a southern transcontinental railroad as a Union work, not a sectional one. This is not the resume of a man plotting a slaveocracy.
It is the resume of a Mississippi Patriot who believed in the Union as long as the Union respected its original Compact.
That is why his standing in 1860 and 1861 matters so much. In Boston at Faneuil Hall in 1858 he received sustained applause, in places a standing ovation, when he defended the Constitutional equality of the States and then appealed for mutual forbearance. Senators from both North and South came to shake his hand. He was considered a Constitutional conservative, because he was.
The Fire Eaters, the Rhetts and Yanceys and Keitts, looked at him skeptically for years precisely because he would not give them what they wanted. Davis had publicly addressed gradual emancipation. He had said in speeches and private letters that he did not wish to see slavery in any form exist by the turn of the Century. His model was not Brazil or Cuba.
It was his brother Joseph Davis at Hurricane Plantation next to Brierfield, where enslaved families had a degree of self governance, where a slave court judged internal disputes, where education was permitted, where the Davis brothers kept families intact and punished cruelty.
At Brierfield, Jefferson Davis permitted his slaves to be taught to read, insisted on Christian instruction, and treated the institution, in his own words, as a trust that must prepare men for a better condition.
That view shaped his entire public stance on the freedmen. He was completely against the colonization schemes that Lincoln, Jefferson before him, and many Northern Republicans favored. Davis argued that colonization was unjust and impractical, that Black people born on this soil for two and three hundred years were Americans too, with a claim to this country by birth and labor.
He was not for a permanent dependent class. He believed education and Christianity would make good citizens of freedmen, and he said so long before the war. Even during the war, and more explicitly after it in his writings, he supported the idea that educated freedmen should sit on juries and should vote.
That is a matter of record in his postwar interviews and in his 1881 Rise and Fall. It is why the Fire Eaters never fully trusted him. They wanted a man who would reopen the African slave trade to cheapen labor. Davis opposed reopening the trade as immoral, as economically destructive to the Upper South, and as fatal to any hope of foreign recognition.
Bring that man to Montgomery in February 1861 and the Constitution that emerged makes sense. The Provisional Congress that drafted the Confederate Constitution was not a council of plantation radicals. It was dominated by lawyers, former United States congressmen, judges, and merchants who thought of themselves as reforming 1787.
William C. Davis in A Government of Our Own shows this with roll calls and letters, the moderates filled the offices, the committees, the presidency itself, while the Fire Eaters were a vocal minority in both houses. They believed they were fixing flaws that had produced professional politicians and sectional aggrandizement.
That is why they gave the President a single six year term with no reelection, why they gave him an item veto, why they banned protective tariffs and Congressional appropriations for internal improvements at Confederate expense, and why they explicitly required that all duties and taxes be uniform. They were trying to close the loopholes through which the old government had become centralized.
Nowhere is the moderating hand clearer than on slavery itself. The finished Confederate Constitution is often quoted for what it says. It is far more important for what it refuses to say. Article I, Section 9 contains the clause everyone cites, no bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed. Read structurally, that is a limit on the Confederate Congress, sitting in the same section as habeas corpus, export taxes, and appropriations. It is not a limit on the States.
The place where the framers would have limited the States if they had wanted a pure slave republic is Article I, Section 10, which lists what States may not do. They put no ban on emancipation there. They knew how to write such a ban. It was offered and rejected.
Duncan Kenner of Louisiana and Robert Barnwell Rhett of South Carolina offered amendments that would have forbidden any State from abolishing slavery or would have required unanimous consent of all States before any State could do so. Those amendments were debated and voted down completely.
The fugitive clause still reads exactly as a Compact provision, a person held to service or labor in any State or Territory under the laws thereof. Duration was left where it had always been, under State law in the U.S. Constitution.
What else was voted down tells you even more about the falsehood of a monolithic slave republic. First, strict racial citizenship clauses. Proposals were introduced to define Confederate citizenship as limited to free White persons and to exclude persons of African descent from any political participation at the federal level. They were defeated.
The final Constitution contains no such blanket definition, leaving domestic questions of status and privilege to the States, which was consistent with the theory that the States were Sovereign Principals of the Compact.
Second, mandatory slavery clauses. Proposals would have required every State joining or remaining in the Confederacy to authorize slavery, and would have made slavery perpetual in every member State. Those too were defeated.
Had they passed, no State could ever have altered its domestic institution. Because they failed, every Confederate State retained the legal power to abolish slavery within its own borders if its people chose to do so, just as Northern States had abolished it under the old Constitution without a federal amendment.
Third, bans on free States. This is the most forgotten rejection. Repeated motions were made to prohibit the admission of any non slaveholding State, or to require unanimous consent of all existing States before a free State could be admitted. They were defeated.
What was adopted instead in Article IV was a two thirds vote of both houses for admitting other States. The debate pitted men like Davis, Alexander Stephens, and Robert Toombs, who supported admitting free States for economic growth and for political flexibility, against Rhett, who wanted a closed slave bloc. Davis and his allies won.
That compromise only makes sense if the leadership saw a future that was not exclusively slaveholding. With most western territories remaining under United States control and places like Arizona offering little for plantation agriculture, expansion of slavery by territorial conquest was impractical. The Gulf States knew secession would likely contract, not expand, slavery's geography.
The same spirit is visible in the African trade fight. Rhett and a handful of Deep South commercial interests wanted to reopen the Atlantic trade. The majority said it was cruel to take someone from freedom and place them in servitude, that it would destroy the value and moral position of the Upper South, and that it would guarantee European hostility.
So the permanent Constitution in Article I, Section 9, Clause 1 forbids the importation of negroes of the African race from any foreign country other than the slaveholding States of the United States, and Clause 2 commands Congress to pass laws to prevent it.
That is not the act of a government plotting endless expansion. It is also why the Convention discussed cooperation with the United States anti slave flotilla. That flotilla in 1860 and 1861 was not hunting Charleston brigs. It was hunting New England built, New England financed, and New England insured slavers still running men into Brazil and Cuba, the last great markets of the Atlantic trade.
Davis governed as that kind of Constitutionalist even when war forced centralization upon him. He used powers the Confederate Constitution itself granted, to raise armies, to provide for the common defense, to suspend habeas corpus when in cases of rebellion or invasion the public safety may require it. Conscription and limited suspensions followed.
He was denounced for it by his own Vice President and his own governors, which proves the compact theory was still alive. Governor Joseph E. Brown of Georgia told Davis conscription was subversive of Georgia's Sovereignty and at war with all the principles for which Georgia entered this revolution.
Vice President Stephens left Richmond and told the Georgia legislature that independence without liberty was a fraud.
Governor Zebulon Vance of North Carolina withheld men and fought Richmond over habeas. Davis answered them with war clauses, not with a claim that the States had ceased to exist. He later wrote that the Confederacy might have died of a theory.
That sentence only makes sense if the theory still had power. If national government over States Rights is the indictment, apply it evenly. Lincoln suspended habeas first and without Congress, drafted on a larger scale, and treated Seceded States as if they had never left.
It is easy for presentists to invent a Constitution that says no one may ever free a slave and then pretend the South wrote it. The text, the rejected amendments, the election record, and Davis's own long career run the other way.
In November 1861 Davis and Stephens were elected under the permanent Constitution by the Electoral College system the United States still uses, with electors chosen by popular vote in every State except South Carolina, which used the legislative method it had used in the old Union.
By 1860 White manhood suffrage was the Southern rule, property qualifications having been stripped in the Jacksonian era, North Carolina dropping the last one in 1856. Poor White men voted in the hundreds of thousands in 1860 in the Southern States. They filled the ranks of the Confederate Army, where non slaveholders were the majority. The tiny popular vote reported in 1861 reflects a wartime, unopposed, poorly reported confirmation, not a one percent planter franchise.
Women and slaves did not vote for Davis. They did not vote for Lincoln either. That was 1861 suffrage everywhere.
What Montgomery created, then, was not a closed slave empire but a reformed federal republic that named an existing State institution, fenced the central government off from it, protected transit and sojourn with slaves so that one Confederate State could not discharge another's property, recognized slavery as it then existed in new territory, and then stopped, leaving emancipation, education, franchise, and citizenship to the States themselves.
That is why proposals to write White only citizenship, mandatory slavery everywhere, and a ban on free States all failed. The government that resulted was deeply committed to State Sovereignty even on the most contentious issue of the age, and its President was a moderate who believed slavery was to be ended gradually, with education and Christian duty, not by colonization or by federal bayonets.
In Liberty and Eternal Vigilance,
C.M.McAteer
August 15, 2000
References
Primary Sources
Constitution of the Confederate States of America, March 11, 1861, Avalon Project, Yale Law School.
Journal of the Congress of the Confederate States of America, Volumes 1-7, 1904-1905, Library of Congress.
Journal of the Provisional Congress, 1861, Documenting the American South, University of North Carolina at Chapel Hill.
Jefferson Davis, The Rise and Fall of the Confederate Government, 2 vols., D. Appleton, 1881.
Jefferson Davis, Speeches, Papers, and Messages, including Faneuil Hall Address, 1858, and Farewell to the United States Senate, January 21, 1861.
Alexander H. Stephens, Cornerstone Speech and later corrections, 1861-1868.
Secondary Sources
William C. Davis, A Government of Our Own: The Making of the Confederacy, Free Press, 1994.
William C. Davis, Jefferson Davis: The Man and His Hour, HarperCollins, 1991.
Marshall L. DeRosa, The Confederate Constitution of 1861: An Inquiry into American Constitutionalism, University of Missouri Press, 1991.
Charles Robert Lee Jr., The Confederate Constitutions, University of North Carolina Press, 1963.
Ralph A. Wooster, The Secession Conventions of the South, Princeton University Press, 1962.
Emory M. Thomas, The Confederate Nation, 1861-1865, Harper and Row, 1979.
Gary W. Gallagher, The Confederate War, Harvard University Press, 1997.
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