On February 8, 1861, the Montgomery Convention adopted a provisional constitution for their new nation. It would be in force for a little over a month before it was replaced by a more permanent document.
As John J. Miller states in yesterday’s Disunion blog in the New York Times, the Provisional Confederate Constitution “was more imitation than innovation” being heavily based on the U.S. Constitution. Yet in terms of slavery the Provisional Confederate Constitution was a significant departure. While slavery was present in both documents it was more implicit in the latter than the former. For instance, the word “slave” is never used in the U.S. Constitution, the subject being dealt with obliquely and by implication.
Article I, Section 2, on enumeration allows states to count three-fifths of their slave population for representation in Congress. “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”
Article 1, Section 9, stopped Congress from banning U.S. participation in the international slave trade for twenty years. “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.“
Lastly, Article IV, Section 2, requires the return of fugitive slaves to their owners if they escaped to another state. “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.“
Interestingly, the Provisional Confederate Constitution only deals with slavery in two passages (the U.S. Constitution deals with it in three as just seen). The lack of provisions for slavery should not be interpreted as meaning the Montgomery Convention thought slavery unimportant–quite the contrary. It was so important that it would need to be debated and deliberated at length, but its two appearances in the document are clearer and “slave” and its variants get used explicitly.
The first mention of slavery in the Provisional Confederate Constitution comes in Article I, Section 7, prohibiting Confederate participation in the international slave trade (which some persons in the South had been trying to re-legalize in the years before the Civil War). “1. The importation of African negroes from any foreign country other than the slave-holding States of the United States, is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same. 2. The Congress shall also have power to prohibit the introduction of slaves from any State not a member of this Confederacy.“
The second mention comes in Article IV, Section 2, and deals with fugitive slaves. “A slave in one State, escaping to another, shall be delivered up on claim of the party to whom said slave may belong by the executive authority of the State in which such slave shall be found, and in case of any abduction or forcible rescue, full compensation, including the value of the slave and all costs and expenses, shall be made to the party, by the State in which such abduction or rescue shall take place.“
So clearly slavery as an issue was present at the inception of the Confederacy. And it was there more explicitly in Montgomery in 1861 than it had been in Philadelphia in 1787. Slavery was also such an important subject to the Confederate founding fathers that it could not be dealt in the document except on two particularly urgent issues, one of which–the international slave trade–would be revisited in the debates over the permanent constitution. Those debates will be dealt with down the road in Civil War Emancipation.