# The Rise and Fall of the Confederate Government/I/I

Inasmuch as questions growing out of the institution of negro servitude, or connected with it, will occupy a conspicuous place in what is to follow, it is important that the reader should have, in the very outset, a right understanding of the true nature and character of those questions. No subject has been more generally misunderstood or more persistently misrepresented. The institution itself has ceased to exist in the United States; the generation, comprising all who took part in the controversies to which it gave rise, or for which it afforded a pretext, is passing away; and the misconceptions which have prevailed in our own country, and still more among foreigners remote from the field of contention, are likely to be perpetuated in the mind of posterity, unless corrected before they become crystallized by tacit acquiescence.
It is well known that, at the time of the adoption of the Federal Constitution, African servitude existed in all the States that were parties to that compact, unless with the single exception of Massachusetts, in which it had, perhaps, very recently ceased to exist. The slaves, however, were numerous in the Southern, and very few in the Northern, States. This diversity was occasioned by differences of climate, soil, and industrial interests—not in any degree by moral considerations, which at that period were not recognized, as an element in the question. It was simply because negro labor was more profitable in the South than in the North that the importation of negro slaves had been, and continued to be, chiefly directed to the Southern ports. For the same reason slavery was abolished by the States of the Northern section (though it existed in several of them for more than fifty years after the adoption of the Constitution), while the importation of slaves into the South continued to be carried on by Northern merchants and Northern ships, without interference in the traffic from any quarter, until it was prohibited by the spontaneous action of the Southern States themselves.
The Constitution expressly forbade any interference by Congress with the slave-trade—or, to use its own language, with the "migration or importation of such persons" as any of the States should think proper to admit—"prior to the year 1808." During the intervening period of more than twenty years, the matter was exclusively under the control of the respective States. Nevertheless, every Southern State, without exception, either had already enacted, or proceeded to enact, laws forbidding the importation of slaves. Virginia was the first of all the States, North or South, to prohibit it, and Georgia was the first to incorporate such a prohibition in her organic Constitution.
Two petitions for the abolition of slavery and the slave-trade were presented February 11 and 12, 1790, to the very first Congress convened under the Constitution. After full discussion in the House of Representatives, it was determined, with regard to the first-mentioned subject, "that Congress have no authority to interfere in the emancipation of slaves, or in the treatment of them within any of the States"; and, with regard to the other, that no authority existed to prohibit the migration or importation of such persons as the States might think proper to admit, prior to the year 1808." So distinct and final was this statement of the limitations of the authority of Congress considered to be that, when a similar petition was presented two or three years afterward, the Clerk of the House was instructed to return it to the petitioner.
In 1807, Congress, availing itself of the very earliest moment at which the constitutional restriction ceased to be operative, passed an act prohibiting the importation of slaves into any part of the United States from and after the first day of January, 1808. This act was passed with great unanimity. In the House of Representatives there were one hundred and thirteen (113) yeas to five (5) nays; and it is a significant fact, as showing the absence of any sectional division of sentiment at that period, that the five dissentients were divided as equally as possible between the two sections: two of them were from Northern and three from Southern States.
The slave-trade had thus been finally abolished some months before the birth of the author of these pages, and has never since had legal existence in any of the United States. The question of the maintenance or extinction of the system of negro servitude, already existing in any State, was one exclusively belonging to such State. It is obvious, therefore, that no subsequent question, legitimately arising in Federal legislation, could properly have any reference to the merits or the policy of the institution itself. A few zealots in the North afterward created much agitation by demands for the abolition of slavery within the States by Federal intervention, and by their activity and perseverance finally became a recognized party, which, holding the balance of power between the two contending organizations in that section, gradually obtained the control of one, and to no small degree corrupted the other. The dominant idea, however, at least of the absorbed party, was sectional aggrandizement, looking to absolute control, and theirs is the responsibility for the war that resulted.
No moral nor sentimental considerations were really involved in either the earlier or later controversies which so long agitated and finally ruptured the Union. They were simply struggles between different sections, with diverse institutions and interests.
It is absolutely requisite, in order to a right understanding of the history of the country, to bear these truths clearly in mind. The phraseology of the period referred to will otherwise be essentially deceptive. The antithetical employment of such terms as freedom and slavery, or "anti-slavery" and "pro-slavery," with reference to the principles and purposes of contending parties or rival sections, has had immense influence in misleading the opinions and sympathies of the world. The idea of freedom is captivating, that of slavery repellent to the moral sense of mankind in general. It is easy, therefore, to understand the effect of applying the one set of terms to one party, the other to another, in a contest which had no just application whatever to the essential merits of freedom or slavery. Southern statesmen may perhaps have been too indifferent to this consideration—in their ardent pursuit of principles, overlooking the effects of phrases.
This is especially true with regard to that familiar but most fallacious expression, "the extension of slavery." To the reader unfamiliar with the subject, or viewing it only on the surface, it would perhaps never occur that, as used in the great controversies respecting the Territories of the United States, it does not, never did, and never could, imply the addition of a single slave to the number already existing. The question was merely whether the slaveholder should be permitted to go, with his slaves, into territory (the common property of all) into which the non-slaveholder could go with his property of any sort. There was no proposal nor desire on the part of the Southern States to reopen the slave-trade, which they had been foremost in suppressing, or to add to the number of slaves. It was a question of the distribution, or dispersion, of the slaves, rather than of the "extension of slavery." Removal is not extension. Indeed, if emancipation was the end to be desired, the dispersion of the negroes over a wider area among additional Territories, eventually to become States, and in climates unfavorable to slave-labor, instead of hindering, would have promoted this object by diminishing the difficulties in the way of ultimate emancipation.
The distinction here defined between the distribution, or dispersion, of slaves and the extension of slavery—two things altogether different, although so generally confounded—was early and clearly drawn under circumstances and in a connection which justify a fuller notice.
Virginia, it is well known, in the year 1784, ceded to the United States—then united only by the original Articles of Confederation—her vast possessions northwest of the Ohio, from which the great States of Ohio, Indiana, Michigan, Illinois, Wisconsin, and part of Minnesota, have since been formed. In 1787—before the adoption of the Federal Constitution—the celebrated "Ordinance" for the government of this Northwestern Territory was adopted by the Congress, with the full consent, and indeed at the express instance, of Virginia. This Ordinance included six definite "Articles of compact between the original States and the people and States in the said Territory," which were to "for ever remain unalterable unless by common consent." The sixth of these articles ordains that "there shall be neither slavery nor involuntary servitude in the said Territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted."
In December, 1805, a petition of the Legislative Council and House of Representatives of the Indiana Territory—then comprising all the area now occupied by the States of Indiana, Illinois, Michigan, and Wisconsin—was presented to Congress. It appears from the proceedings of the House of Representatives that several petitions of the same purport from inhabitants of the Territory, accompanied by a letter from William Henry Harrison, the Governor (afterward President of the United States), had been under consideration nearly two years earlier. The prayer of these petitions was for a suspension of the sixth article of the Ordinance, so as to permit the introduction of slaves into the Territory. The whole subject was referred to a select committee of seven members, consisting of representatives from Virginia, Ohio, Pennsylvania, South Carolina, Kentucky, and New York, and the delegate from the Indiana Territory.
On the 14th of the ensuing February (1806), this committee made a report favorable to the prayer of the petitioners, and recommending a suspension of the prohibitory article for ten years. In their report the committee, after stating their opinion that a qualified suspension of the article in question would be beneficial to the people of the Indiana Territory, proceeded to say:
"The suspension of this article is an object almost universally desired in that Territory. It appears to your committee to be a question entirely different from that between slavery and freedom, inasmuch as it would merely occasion the removal of persons, already slaves, from one part of the country to another. The good effects of this suspension, in the present instance, would be to accelerate the population of that Territory, hitherto retarded by the operation of that article of compact; as slaveholders emigrating into the Western country might then indulge any preference which they might feel for a settlement in the Indiana Territory, instead of seeking, as they are now compelled to do, settlements in other States or countries permitting the introduction of slaves. The condition of the slaves themselves would be much ameliorated by it, as it is evident, from experience, that the more they are separated and diffused the more care and attention are bestowed on them by their masters, each proprietor having it in his power to increase their comforts and conveniences in proportion to the smallness of their numbers."
These were the dispassionate utterances of representatives of every part of the Union—men contemporary with the origin of the Constitution, speaking before any sectional division had arisen in connection with the subject. It is remarkable that the very same opinions which they express and arguments which they adduce had, fifty years afterward, come to be denounced and repudiated by one half of the Union as partisan and sectional when propounded by the other half.
No final action seems to have been taken on the subject before the adjournment of Congress, but it was brought forward at the next session in a more imposing form. On the 20th of January, 1807, the Speaker laid before the House of Representatives a letter from Governor Harrison, inclosing certain resolutions formally and unanimously adopted by the Legislative Council and House of Representatives of the Indiana Territory, in favor of the suspension of the sixth article of the Ordinance and the introduction of slaves into the Territory, which they say would "meet the approbation of at least nine tenths of the good citizens of the same." Among the resolutions were the following:
"Resolved unanimously, That the abstract question of liberty and slavery is not considered as involved in a suspension of the said article, inasmuch as the number of slaves in the United States would not be augmented by this measure.
"Resolved unanimously, That the suspension of the said article would be equally advantageous to the Territory, to the States from whence the negroes would be brought, and to the negroes themselves....
"The States which are overburdened with negroes would be benefited by their citizens having an opportunity of disposing of the negroes which they can not comfortably support, or of removing with them to a country abounding with all the necessaries of life; and the negro himself would exchange a scanty pittance of the coarsest food for a plentiful and nourishing diet, and a situation which admits not the most distant prospect of emancipation for one which presents no considerable obstacle to his wishes."
These resolutions were submitted to a committee drawn, like the former, from different sections of the country, which again reported favorably, reiterating in substance the reasons given by the former committee. Their report was sustained by the House, and a resolution to suspend the prohibitory article was adopted. The proposition failed, however, in the Senate, and there the matter seems to have been dropped. The proceedings constitute a significant and instructive episode in the political history of the country.
The allusion which has been made to the Ordinance of 1787, renders it proper to notice, very briefly, the argument put forward during the discussion of the Missouri question, and often repeated since, that the Ordinance afforded a precedent in support of the claim of a power in Congress to determine the question of the admission of slaves into the Territories, and in justification of the prohibitory clause applied in 1820 to a portion of the Louisiana Territory.
The difference between the Congress of the Confederation and that of the Federal Constitution is so broad that the action of the former can, in no just sense, be taken as a precedent for the latter. The Congress of the Confederation represented the States in their sovereignty, each delegation having one vote, so that all the States were of equal weight in the decision of any question. It had legislative, executive, and in some degree judicial powers, thus combining all departments of government in itself. During its recess a committee known as the Committee of the States exercised the powers of the Congress, which was in spirit, if not in fact, an assemblage of the States.
On the other hand, the Congress of the Constitution is only the legislative department of the General Government, with powers strictly defined and expressly limited to those delegated by the States. It is further held in check by an executive and a judiciary, and consists of two branches, each having peculiar and specified functions.
If, then, it be admitted—which is at least very questionable—that the Congress of the Confederation had rightfully the power to exclude slave property from the territory northwest of the Ohio River, that power must have been derived from its character as an assemblage of the sovereign States; not from the Articles of Confederation, in which no indication of the grant of authority to exercise such a function can be found. The Congress of the Constitution is expressly prohibited from the assumption of any power not distinctly and specifically delegated to it as the legislative branch of an organized government. What was questionable in the former case, therefore, becomes clearly inadmissible in the latter.
But there is yet another material distinction to be observed. The States, owners of what was called the Northwestern Territory, were component members of the Congress which adopted the Ordinance for its government, and gave thereto their full and free consent. The Ordinance may, therefore, be regarded as virtually a treaty between the States which ceded and those which received that extensive domain. In the other case, Missouri and the whole region affected by the Missouri Compromise, were parts of the territory acquired from France under the name of Louisiana; and, as it requires two parties to make or amend a treaty, France and the Government of the United States should have coöperated in any amendment of the treaty by which Louisiana had been acquired, and which guaranteed to the inhabitants of the ceded territory "all the rights, advantages, and immunities of citizens of the United States," and "the free enjoyment of their liberty, property, and the religion they profess."—("State Papers," vol. ii, "Foreign Relations," p. 507.)
For all the reasons thus stated, it seems to me conclusive that the action of the Congress of the Confederation in 1787 could not constitute a precedent to justify the action of the Congress of the United States in 1820, and that the prohibitory clause of the Missouri Compromise was without constitutional authority, in violation of the rights of a part of the joint owners of the territory, and in disregard of the obligations of the treaty with France.
The basis of sectional controversy was the question of the balance of political power. In its earlier manifestations this was undisguised. The purchase of the Louisiana Territory from France in 1803, and the subsequent admission of a portion of that Territory into the Union as a State, afforded one of the earliest occasions for the manifestation of sectional jealousy, and gave rise to the first threats, or warnings (which proceeded from New England), of a dissolution of the Union. Yet, although negro slavery existed in Louisiana, no pretext was made of that as an objection to the acquisition. The ground of opposition is frankly stated in a letter of that period from one Massachusetts statesman to another—"that the influence of our part of the Union must be diminished by the acquisition of more weight at the other extremity."
Some years afterward (in 1819-'20) occurred the memorable contest with regard to the admission into the Union of Missouri, the second State carved out of the Louisiana Territory. The controversy arose out of a proposition to attach to the admission of the new State a proviso prohibiting slavery or involuntary servitude therein. The vehement discussion that ensued was continued into the first session of a different Congress from that in which it originated, and agitated the whole country during the interval between the two. It was the first question that ever seriously threatened the stability of the Union, and the first in which the sentiment of opposition to slavery in the abstract was introduced as an adjunct of sectional controversy. It was clearly shown in debate that such considerations were altogether irrelevant; that the number of existing slaves would not be affected by their removal from the older States to Missouri; and, moreover, that the proposed restriction would be contrary to the spirit, if not to the letter, of the Constitution. Notwithstanding all this, the restriction was adopted, by a vote almost strictly sectional, in the House of Representatives. It failed in the Senate through the firm resistance of the Southern, aided by a few patriotic and conservative Northern, members of that body. The admission of the new State, without any restriction, was finally accomplished by the addition to the bill of a section for ever prohibiting slavery in all that portion of the Louisiana Territory lying north of thirty-six degrees and thirty minutes, north latitude, except Missouri—by implication leaving the portion south of that line open to settlement either with or without slaves.
This provision, as an offset to the admission of the new State without restriction, constituted the celebrated Missouri Compromise. It was reluctantly accepted by a small majority of the Southern members. Nearly half of them voted against it, under the conviction that it was unauthorized by the Constitution, and that Missouri was entitled to determine the question for herself, as a matter of right, not of bargain or concession. Among those who thus thought and voted were some of the wisest statesmen and purest patriots of that period.
This brief retrospect may have sufficed to show that the question of the right or wrong of the institution of slavery was in no wise involved in the earlier sectional controversies. Nor was it otherwise in those of a later period, in which it was the lot of the author of these memoirs to bear a part. They were essentially struggles for sectional equality or ascendancy—for the maintenance or the destruction of that balance of power or equipoise between North and South, which was early recognized as a cardinal principle in our Federal system. It does not follow that both parties to this contest were wholly right or wholly wrong in their claims. The determination of the question of right or wrong must be left to the candid inquirer after examination of the evidence. The object of these preliminary investigations has been to clear the subject of the obscurity produced by irrelevant issues and the glamour of ethical illusions.

### Notes

* ↑ It will be remembered that, during her colonial condition, Virginia made strenuous efforts to prevent the importation of Africans, and was overruled by the Crown; also, that Georgia, under Oglethorpe, did prohibit the introduction of African slaves until 1752, when the proprietors surrendered the charter, and the colony became a part of the royal government, and enjoyed the same privileges as the other colonies.
* ↑ South Carolina subsequently (in 1803) repealed her law forbidding the importation of slaves. The reason assigned for this action was the impossibility of enforcing the law without the aid of the Federal Government, to which entire control of the revenues, revenue police, and naval forces of the country had been surrendered by the States. "The geographical situation of our country," said Mr. Lowndes, of South Carolina, in the House of Representatives on February 14, 1804, "is not unknown. With navigable rivers running into the heart of it, it was impossible, with our means, to prevent our Eastern brethren ... engaged in this trade, from introducing them [the negroes] into the country. The law was completely evaded.... Under these circumstances, sir, it appears to me to have been the duty of the Legislature to repeal the law, and remove from the eyes of the people the spectacle of its authority being daily violated." The effect of the repeal was to permit the importation of negroes into South Carolina during the interval from 1803 to 1808. It in probable that an extensive contraband trade was carried on by the New England slavers with other ports, on account of the lack of means to enforce the laws of the Southern States forbidding it.
* ↑ One from the Society of Friends assembled at Philadelphia and New York, the other from the Pennsylvania society of various religious denominations combined for the abolition of slavery. For report of the debate, see Benton's "Abridgment," vol. i, pp. 201-207, et seq.
* ↑ See Benton's "Abridgment," vol. i, p. 397.
* ↑ One was from New Hampshire, one from Vermont, two from Virginia, and one from South Carolina.—(Benton's "Abridgment," vol. iii, p. 519.) No division on the final vote in the Senate.
* ↑ Cabot to Pickering, who was then Senator from Massachusetts.—(See "Life and Letters of George Cabot," by H. C. Lodge, p. 334.)
* ↑ The true issue was well stated by the Hon. Samuel A. Foot, a representative from Connecticut, in an incidental reference to it in debate on another subject, a few weeks after the final settlement of the Missouri case. He said: "The Missouri question did not involve the question of freedom or slavery, but merely whether slaves now in the country might be permitted to reside in the proposed new State; and whether Congress or Missouri possessed the power to decide."
* ↑ The votes on the proposed restriction, which eventually failed of adoption, and on the compromise, which was finally adopted, are often confounded. The advocacy of the former measure was exclusively sectional, no Southern member voting for it in either House. On the adoption of the compromise line of thirty-six degrees and thirty minutes, the vote in the Senate was 34 yeas to 10 nays. The Senate consisted of forty-four members from twenty-two States, equally divided between the two sections—Delaware being classed as a Southern State. Among the yeas were all the Northern votes, except two from Indiana—being 20—and 14 Southern. The nays consisted of 2 from the North, and 8 from the South. In the House of Representatives, the vote was 134 yeas to 42 nays. Of the yeas, 95 were Northern, 39 Southern; of the nays, 5 Northern, and 37 Southern. Among the nays in the Senate were Messrs. James Barbour and James Pleasants, of Virginia; Nathaniel Macon, of North Carolina; John Gaillard and William Smith, of South Carolina. In the House, Philip P. Barbour, John Randolph, John Tyler, and William S. Archer, of Virginia; Charles Pinckney, of South Carolina (one of the authors of the Constitution); Thomas W. Cobb, of Georgia; and others of more or less note. (See speech of the Hon. D. L. Yulee, of Florida, in the United States Senate, on the admission of California, August 6, 1850, for a careful and correct account of the compromise. That given in the second chapter of Benton's "Thirty Years' View" is singularly inaccurate; that of Horace Greeley, in his "American Conflict," still more so.)