GLEN COVE, NY — It is sometimes claimed that the
attitude about slavery changed from the time of American Independence
to the War Between the States, becoming more pro-slavery. History does
not bear this out.
Those who espouse this theory try to depict Southern attitudes toward
slavery from 1776 to 1788 as more anti-slavery than they actually were,
while they depict Southern attitudes from 1840 and 1861 as more pro-slavery
than they actually were. The truth is that typical Southern views were
largely unchanged throughout this time frame. These views were not
so much pro-slavery or anti-slavery as much as they were practical
ideas about dealing with the reality of slavery.
Two examples of early Southern anti-slavery sentiment are cited by
advocates of changing Southern sentiments: certain emancipations by
some of the fathers of our country, and the Northwest Ordinance. There
is no evidence that Southern attitudes about emancipation changed much
over the years. Southern slaveholders consistently emancipated some
of their most faithful slaves, but they almost never emancipated so
many that it would constitute a disinheritance of their children. Childless
slaveholders emancipated more slaves than did those with children.
The black middle class in the pre-war South was based upon emancipation.
Virginia agreed to the provision of the Northwest Ordinance that
slavery would not exist in the Northwest Territory. As a practical
matter, this provision was interpreted as abolishing the slave trade
rather than slavery itself in the territory. The ordinance did not
free the existing slaves along the north bank of the Ohio River, nor
did it prohibit slaveholders from taking their slaves into the territory
and back out. The Northwest Ordinance was our first fugitive slave
law. The fact remains that Virginia did not want the northern Ohio
Valley and the Great Lakes to become tobacco plantations.
In contrast to this approach, Virginia also nurtured its Kentucky
Territory into a slave state. Virginia was following the position consistently
taken by the South until the last-ditch efforts to avoid war with the
North. It wanted to maintain a balance between plantation states and
industrial states, while preserving the rights of existing slaveholders.
At the outbreak of the war, Southern attitudes were largely unchanged.
The Confederate Constitution allowed the slave trade within the Confederate
states and the slave states and territories of the United States, but
it did not allow slave trade with any other country or with the free
states of the North. It allowed the individual Confederate states to
abolish slavery but not to free the slaves of persons from other Confederate
states who might visit the free states.
The most instructive piece of history about Southern attitudes at
the outbreak of the war is the new Constitution that Georgia adopted
upon its secession from the Union. Article II, Section VII of the 1861
Georgia Constitution contained four clauses. The first prohibited the
international slave trade, except with slaveholding American states
and territories. The second allowed the legislature to prohibit the
interstate slave trade, but not to prohibit people moving into Georgia
from bringing their slaves with them. The third denied the legislature
the right to free slaves by simple legislative act. The fourth required
that the punishment for killing or maiming slaves be the same as that
for killing or maiming white people.
The fourth clause was radical in several respects. It changed the
status of violent crimes against slaves from primarily crimes against
their masters to primarily crimes against the slaves. The Dred
Scott decision had established that slaves had no federal Constitutional
rights. The Georgia Constitution made the slaves’ rights to life
and bodily integrity Constitutional ones.
In 1861, Georgia had over 1,000 free blacks and hundreds of slaves
who were allowed by their masters to live as if they were free. The
new Georgia Constitution did nothing to curb the growth of a free and
nearly free black population. At the same time, it extended novel Constitutional
protection to slaves. It protected the position of slaveholders but
did not protect any attempt to increase the slave population.
This Georgia Constitution is the clearest official pronouncement
of Southern policy in 1861. It is the voice of a people trying to be
fair to slaveholders, not to promote or extend slavery. The myth of
fanatical support for slavery increasing is unfounded.
The Confederate Lawyer column is copyright © 2012
by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com.
All rights reserved.
Charles G. Mills is the Judge Advocate or general counsel for the
New York State American Legion. He has forty years of experience in
many trial and appellate courts and has published several articles
about the law.
See his biographical sketch and additional columns here.
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