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The Confederate Lawyer
January 13, 2012

Did the Old South Change its Mind?
by Charles G. Mills
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GLEN COVE, NY — It is sometimes claimed that the South’s 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.

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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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