 By late January, political leaders started piling into Montgomery, Alabama to represent their state in the formation of the New Confederacy. They all knew this was a temporary fix. They needed to draft a provisional constitution, appoint a temporary president until elections could be held, and they needed to establish the basic administrative state to carry out typical government functions. This was the agenda, and everything else could be hashed out after any remaining slave states joined, and the possibility of war was behind them. It's kind of startling to see the condition that these political figures dealt with when staying in Montgomery by the way. A hotel room was provided for all of the delegates, but some of them not only shared a room, but they had to share a bed, which of course was a lot more common back then, but it's hard to imagine politicians being asked to put up with any such inconvenience in order to do their duty today. Already the men were speculating about who might be president. Many of them had a list of objectives to try to see put into the new constitution. This might have seemed simple enough, but once the various delegates started talking to each other, more complicated questions started to arise. Should they hold immediate elections, or should the delegates immediately take legislative power? Some people believed that they should take on legislative powers for a full year, at least until elections could be held. Others believed that they should put the vote to the people right away. The question of the president was also ever present. Mississippi wanted Jefferson Davis, of course, but a lot of people thought he was too soft on secession. In the summer of 1860, his wife was in Washington, D.C., wearing a button that said, Jeff Davis, no secedar. And when he was secretary of war in the late 1850s, some Southerners wanted him to use his position to start amassing arms in the south, which Davis refused to do. He was a conditional unionist. But Georgia was the most influential group of Southerners at this point, being the largest of the seceded states prior to Virginia's secession in April. They wanted Atlanta to serve as the capital of the Confederacy, but Montgomery was more centrally located. But they did have three giant figures, all of whom could be presidential contenders. The biggest name was Robert Tombs, next was Alexander Stevens, and third was Howell Cobb. Many people just assumed that Georgia, with its influence, would be able to get one of these three as president. But the Constitution came first. I'm Chris Calton, and this is the Mises Institute podcast, Historical Controversies. So far we've looked at South Carolina prior to the other seceding states, and we've looked at Lincoln and the Republican Party's efforts to find a compromise that would appease the South. Before we finally get to the bombardment of Fort Sumter, though, I think it will also be worth looking briefly at the formation of the Confederate government, which is the topic of today's episode. The delegates met officially on February 4th. There were 37 delegates total, though there would be 43 when the last few arrived. Texas had only seceded three days prior, remember. The men ranged in age from 31 to 71, but most of the men were in their 40s. The majority of them were lawyers, and the next largest group were planters. Nearly all of the men were college educated, and all but eight of them were slave owners. Though some of the most outspoken proponents of slavery, such as South Carolina fire-eater Lawrence Kitt, were among the non-slave-holding few. Most of the delegates were former Whigs, but it should be no surprise that most of them were Democrats, and a good handful had been members of some minor third party or another, such as the Know-Nothings. Nearly half of the delegates had opposed to their state's secession, which might be the most interesting tidbit. The fire-eaters may have led the secessionist charge, but the moderates drove the formation of the new government. After opening the session with a blessing given by a reverend, the delegates chose a temporary secretary and gave a roll call. George's Howell Cobb was selected as president of the proceedings. These and other mundane matters took up the first day of proceedings, but on February 5th, debate on the provisional government could take place, and many delegates already had plans approved by their state that they hoped to push through. The first item on the agenda was the formation of a provisional government. Thomas Cobb, Howell's brother, introduced the so-called Georgia program. He wanted to declare the current Congress to be a fully empowered legislative body. Louisiana was the only other state willing to support a plan that would circumvent elections so boldly. This plan did not have enough support, so Cobb pulled his proposal, and the committee decided that the first priority should instead be the establishment of a provisional constitution based on the United States Constitution, the appointment of a temporary president and vice president, and thirdly, a convention should be called to work on a permanent constitution to replace the provisional one. So a committee was then formed to work on the provisional constitution. It was called the Committee of Twelve. Everybody agreed that the U.S. Constitution should be the model for the new constitution, but there was much disagreement about what changes, if any, should be made. After the delegates argued amongst themselves over certain provisions, Alabama's Robert Smith stood up to argue that the framing of a provisional constitution would be of little importance if there was no legislative body in the new country. Smith's argument seems to have swayed many of the delegates who presumably did not support Thomas Cobb's Georgia plan, because the first clause in the provisional constitution was drafted to read, quote, all legislative powers here in granted shall be vested in this Congress now assembled until otherwise ordained, end quote. The delegation had just declared themselves legislators, at least until elections could be held. As they moved on with the document, the provisional constitution was drafted relatively rapidly. Keep in mind the constitution I'm talking about here is not the same as the permanent Confederate constitution that was drafted a little bit later, so there are some differences between the two. But the provisional constitution tried to change as little from the U.S. Constitution as possible, except for Article 1 in which the delegates cut out nearly all of Sections 2 and 3, these being the sections regarding congressional elections and organization. They would fill all this stuff in when they decided on a permanent constitution. They also cut out the clause from Section 5 that prevented congressmen from simultaneously holding cabinet positions. This was done on the suggestion of Alexander Stevens, who was a fan of the British parliamentary system in which all cabinet members sat in parliament. They also added a clause prohibiting protectionist tariffs, though revenue tariffs were still allowed. Import duties on foreign items were capped at 15%, with an exception allowed during war. They also added a proviso allowing Congress to regulate export goods, which they drafted with cotton exports to Europe in mind. Another restriction added to Stevens' suggestion was that any funding bill could only be presented for congressional approval if it was first requested by the president. This clause was made with Northern internal improvements in mind, which the delegates felt had long been abused by the North. A clause prohibiting the slave trade was also approved, which was supported on a number of grounds. Slave owners, of course, did not want to lower the value of the slaves they already owned, and in a previous episode I quoted one Southerner explicitly declaring this. But they also feared the dangers of having too large of a slave population to control. One other motivation was the fact that slave ships, even in 1860, were mostly owned by Northern merchants. And the delegates did not want to depend on Northerners for anything. They also approved a clause that would allow Congress to regulate the slave trade with any state that was not part of the Confederacy, but this was done with the border states in mind. When it came to Article 2, the delegates debated on the manner of selecting the president. This issue here would persist up to the finalization of the permanent constitution. Many delegates were not happy with the electoral college, but at the end of the day, nobody seemed to be able to offer a superior alternative. For the provisional constitution, they decided to just let the matter go until they started work on the permanent constitution. In the meantime, the delegates would select the president, and each state would get a single vote, so every state's delegates would have to debate amongst themselves who should get their collective vote. The president's executive power would mirror that of the U.S. Constitution. But anything that required Senate approval, since there was no Senate at the moment, would instead be approved by the delegates in the provisional legislature. In Article 3, the judiciary was copied almost word for word from the U.S. Constitution. However, each state was now its own separate judicial district, with a presidentially appointed judge supervising the district and circuit courts, and appeals to the Supreme Court could be made directly from the circuit courts bypassing the district courts. This last provision was probably the product of having 10 of the 12 committee members being lawyers. In Article 4, the delegates greatly strengthened the Fugitive Slave Clause, modeling it after the Fugitive Slave Law of 1850. Additionally, if any citizen carried out a quote, unquote, forcible rescue of a slave, the home state of the citizen was liable to pay restitution to the slave's owner. The delegates also omitted any clauses dealing with the matter of territories and the admittance of new states. This had been a major point of contention in the recent election, and it was still the subject of enough disagreement among the southern delegates that it was easier to simply avoid the issue until the drafting of the permanent Constitution. The amendment process for the Constitution was reduced in Article 5, allowing only one avenue for a constitutional amendment, being a two-thirds vote by Congress. No ratification by the states was necessary for amendments. In Article 6, they agreed to take on any debts incurred by states in the process of secession, and they agreed that the new government should immediately settle all debts with the Union government for properties. This quite clearly referring to Fort Sumter and in Pensacola, Florida, Fort Pickens. Finally, they formally set Montgomery as the capital of the new country for the time being. On February 7, the draft of the provisional Constitution was read to the rest of the delegation. Although there was nothing particularly surprising in the draft, the delegates were unhappy when Alexander Stevens immediately moved to postpone debate over the document. He wanted to give the printers time to make copies that could be handed out to the rest of the delegates, but some of the delegates felt the day was completely wasted while they waited on the printer. With every state eager for news about the new government, reporters were even sending reports that the provisional Constitution had already been fully approved after five hours of deliberation, which was entirely false. In the meantime, people started thinking more about the president. At the beginning of the convention, George's Robert Toomes was probably the favorite for president, and it's likely that he would have been selected had he not made a spectacle of himself one evening during a dinner party. Toomes wasn't part of the committee of 12, so while they were drafting the provisional Constitution, he was free to join in some of the evening recreation that Montgomery's wealthier citizens were offering the delegates. Every evening, Robert Toomes joined citizens for drinks, usually accompanied by his friend Alexander Stevens. One night, the drunk Toomes informed a crowd of people that he had received a telegram from Governor Pickens in South Carolina, telling him that they had opened fire on Fort Sumter. This was completely untrue, and Alexander Stevens had to apologize for his friend, telling the people that he became fanciful when he drank too much. But the worst came on another evening when Toomes and Stevens joined a dinner party. Wine was freely provided at the party, and Toomes took advantage of the generosity of his host by drinking in excess. Many of the attendees had already seen Toomes acting a fool in the evenings, but this was the worst display yet. He seemed irresponsible, irrational, and flighty. Their trust in the statesman was quickly eroding. Several people reported that Toomes' behavior shook their confidence in his ability to represent their new country, but Toomes himself was oblivious to all of this. With Toomes losing popularity, eyes were beginning to turn towards Alexander Stevens. Stevens was a moderate, unlike Toomes, and people were starting to think that a moderate is exactly what the country needed right now. He seemed like a much safer choice. Others looked at Howell Cobb, the Third Georgian. Nobody was particularly enthusiastic about Cobb, but to the people who supported him for president, he was safe and stable. He was the conservative choice. He represented the middle ground between the charismatic but unstable Toomes and the introverted and moderate Alexander Stevens. But other people, for whatever reason, were less forgiving of Cobb's involvement in the Constitutional Union Party in 1851, even though Toomes and Stevens had both also been members. He seemed to many like a fair weather friend, which was liable to turn against the Confederacy as soon as things turned sour. So while Georgia still held the greatest influence as a single state, it had three contenders for the presidency, each with varying support. This made Mississippi's favorite candidate, Jefferson Davis, more competitive. Davis enjoyed the support of South Carolina's Robert Barnwell Rett, and other delegates started sensing the wind shifting more in Davis's favor. Regardless, many delegates continued to take it for granted that Georgia would decide the presidency. Since each state only got one vote for the presidency, debate took place between the delegates from each state, which made for an interesting dynamic. Since delegates were not debating with other states very much, everybody was operating on their own assumptions of which states would support which contender, which probably really helped Jefferson Davis out, though nobody was necessarily conscious of this. Mississippi's Alexander Clayton did help turn the tide for Davis from other states. He wanted to get Davis elected president, but he also wanted to make sure that Georgia didn't win everything in the new government, which he used to help paint Jefferson Davis as a way to prevent this. Georgia was already trying to get the permanent capital moved to Atlanta, and they clearly expected to gain the presidency, with Thomas Cobb demonstrating arrogance about his state's influence on the matter that other delegates found a bit off-putting. So to make the case for Jefferson Davis as the alternative to the Georgians, Clayton brought with him a letter that Jefferson Davis had written in response to one asking if he was interested in the presidency. In the letter, Davis said that he did not want the office, but he would fulfill any duty required of him. How much this is Davis playing politics is hard to say. It was a common practice at the time for contenders for high office to feign a lack of desire and power, which demonstrated modesty and showed the people that they were not ambitious or power hungry. Some people do find it plausible though, believing that Davis would have preferred to serve as a military leader. Who really knows? But regardless of whether or not Davis was being completely sincere, Clayton used the letter to rally support for him. At this point, Mississippi was the only state that was unified behind any given candidate. Georgia had a lot of pull, but they were torn between their three contenders. So while the other states were debating amongst themselves, Mississippi was able to visit other delegates and make their case for Davis. Tom Cobb, the arrogant delegate who was too confident in Georgia's influence and wasn't shy about mentioning it, made a power play. He tried to change the one state, one vote rule so that every delegate would get a vote. This may not mean that Georgia got its pick of the president, but it would be much more likely that one of their guys would get an office. Plus, with Georgia having 10 delegates being 20% of the Congress, they could unite behind a candidate and make the election more certain. Cobb also wanted legislation to be decided by a majority of delegates rather than a majority of states, but this proposal was too bold. To other delegates, it was quite obvious that this would put the bulk of power in the hands of Georgia. There was only one House of Congress, at least for the time, so they couldn't take the US Constitution solution of dividing representatives by the population while balancing the power with an equal appointment of senators. The one state, one vote rule was kept. South Carolina seemed divided. Robert Barnwell wanted to see Jefferson Davis win the presidency, but Lawrence Kitt, William Boyce and Robert Barnwell Rett weren't fond of the man. Note that Robert Barnwell and Robert Barnwell Rett were cousins, both serving his South Carolina delegates. There was also a Robert Barnwell Rett junior so these records can be highly confusing, and I'm trying not to mix these three men up, but it can be an easy mistake to make, so be aware of that. Kitt and Boyce knew Davis personally and despised to the man, and Rett had never met him, but what he'd heard didn't give him a favorable impression. They were not going to support Davis for anything. He'd been far too soft on the matter of secession. James Chestnut favored Alexander Stevens, but he wasn't opposed to Davis, and William Miles seemed open to Davis, but not fully decided. Christopher Miminger was completely open to persuasion and Thomas Withers, the uncle of the famous diarist, Mary Chestnut, who is James Chestnut's wife, could potentially be persuaded through James Chestnut. It was on these men that Barnwell focused his efforts in gaining support for Jefferson Davis. While Robert Barnwell was trying to sway South Carolina to support Davis, Lawrence Kitt was trying to figure out how to get Alexander Stevens in the presidency. Even though Stevens had also been a moderate on secession, Kitt liked him far more than Davis. He knew that Mississippi was going to support Davis no matter what, and Alabama was almost certainly going to throw in for Davis as well, but if he could get the other states to unite behind Stevens, they might be able to get him elected. Florida had expressed an intention to vote with South Carolina, which means Kitt had to get his colleagues to support Stevens instead of Davis. If Georgia would unite behind Stevens and Kitt successfully got South Carolina and Florida to go that way, Louisiana would probably fall in with them as well. Four votes were a majority, so that's all he needed. This also indicates that even though they didn't know it, South Carolina was probably going to decide the presidency more than Georgia was. Meanwhile, the Congress decided as a whole that whoever got the four votes for the presidency should get the votes from all the states. This meant that the delegates would present their vote quietly in Congress, but then all states agreed to change their official public ballot to whoever won so that the new Congress could present the illusion of unanimity. They wanted to let the people believe that they had complete confidence in their new executive. This last point is worth mentioning because it often gets overlooked. When Jefferson Davis was sent word that he was elected president, the telegram read, quote, we are directed to inform you that you are this day unanimously elected president of the provisional government of the Confederate States of America. Shelby Foote cites this message at the very beginning of his history of the Civil War and many people take the note at face value, so the idea that Jefferson Davis was unanimously chosen is still quite pervasive, but it simply isn't true. The decision was not unanimous and the claim that it was unanimous was a previously decided on strategic decision. It was a practical deception crafted by the provisional Congress, but Georgia was making some of the other states uncomfortable. They seemed to be giving the impression that if they did not get the presidency, they would demand the capital be moved to Atlanta. The clear exertions of their power were unbecoming to the other delegates. Furthermore, they were not united behind any of their three contenders, though these seem to be leaning toward howl cob rather than Alexander Stevens at this point. So the matter came down to South Carolina, which was probably the most divided of all the states. Alexander Stevens said that South Carolina delegates were, quote, all Ishmaelites amongst themselves, no two of them agree. They are all jealous of each other, no news. There is no harmony or cordiality among them, always respectful in debate, but they talk about and against each other, end quote. Barnwell, though, won James Chestnut over and the two of them worked to get the other delegates to throw in for Davis. Thomas Withers thought Davis had been rude to him at one point in the past and James Chestnut implored his wife's uncle to look past that old offense for the good of the new nation. Eventually, he agreed to support the Mississippian as well. Robert Barnwell was even able to win over his cousin, Robert Barnwell Rett. Rett was one of the delegates most against Davis, worrying about rumors that Davis had been an unconditional unionist. These rumors were obviously not true, but Davis's past behavior and opposing secession did not sit well with the fire eater. Robert Barnwell conceded the point, saying, quote, his temper is not good and his record in politics is not quite clear. I think him, however, the man for the time and place, end quote, reluctantly, Rett agreed. Even though some of South Carolina's other delegates were still undecided, winning over Rett and Withers was enough to effectively decide the matter. Miles had already been leaning toward Davis and that would make a majority. South Carolina was going to vote for Davis and with them would come Florida. Mississippi was obviously firmly in the Davis camp, so they only needed one more vote to see Davis as president. Despite Lawrence Kitt's assumption, Alabama was not firmly behind Davis. Too many of their delegates were trying to get one of their own in the running, William Yancey, and when it seemed clear that he wouldn't get it, Robert Toomes seemed to be the next pick. Thomas Cobb approached Alabama to lobby for his brother, Howell, claiming falsely that Georgia was going to vote for him, but Alabama dismissed Cobb entirely. Finally, when Virginia secessionists sent word that they supported Davis, Alabama threw in for him as well. Louisiana made a fifth vote for Davis with less consternation. The Georgia delegation was completely unaware that everything was already turning toward Davis. They believed that most of the other states were going to vote for one of theirs and they simply needed to vote for whoever that was. Alexander Stevens believed South Carolina was going to vote for Robert Toomes and despite his antics, he still had strong support in Georgia. But when word came that everybody else had voted for Davis, the Georgia delegation was flabbergasted. Some people questioned the rumors, but after enough assurances that it was true, Georgia knew that voting for Toomes would break the commitment to unanimity. They had to cast their official vote for Davis. Texas, by the way, still had no delegates in Montgomery, so they cast no vote on the matter. Their first delegate wouldn't show up until February 15th, roughly a week away. With Georgia facing the loss of the presidency, they decided they could at least get one of theirs in the vice presidential seat and Robert Toomes nominated Alexander Stevens. With the other states recognizing Georgia's importance as the largest and most industrialized state, this concession was easily made. The president and vice president were decided. There were quite a few other things debated in the formation of the Confederate government. They had to establish administrative positions and bureaucracies and the provisional constitution did undergo some more debate and alteration, but in the interest of time, I want to jump ahead to the permanent constitution. The same committee of 12 worked on the draft of the permanent constitution, and by February 28th, they were ready to present it to Congress. The first matter of deliberation came in the preamble, which was changed from Confederate states of America to the federal Republic of America, though eventually this would be changed back as we all know. The other changes were more substantive. The delegates revered the U.S. Constitution, but they also had in mind some failings in the old document that they now had an opportunity to correct. With the doctrine of localism in the minds of many delegates, they changed to the wording so that powers were not granted to Congress, but rather delegated. This was probably only semantic, but it represents the federalist mentality of many delegates, particularly South Carolinas. It was James Chestnut who proposed the change. Robert Barnwell-Rett also made a ploy to get South Carolina greater representation in Congress. He wanted to do away with the three-fifths compromise so that slaves could be counted as whole persons for the purposes of representation, but the motion failed. One of the more significant changes and one that many people still point to as a genuine improvement on the U.S. Constitution was the insertion of a line item veto proposed by Robert Smith from Alabama. There's still a lot of people who think that the President should have this today instead of signing or rejecting entire bills, which allows ridiculous provisions to get snuck in as earmarks. Moving away from the provisional Constitution, of course, the permanent Constitution reestablished a bicameral Congress, copying the model for the U.S. Constitution except that representatives were granted for every 50,000 citizens rather than 30,000. Today, by the way, we have one representative for nearly one million people if you want to let that absurdity sink in. The matter of the slave trade was brought back up as well. Alabama's Richard Walker moved to prohibit the slave trade as well as prohibit slaves from being imported from slave states that remained in the Union, being an even stronger restriction on the slave trade than the provisional Constitution had, since that one only empowered Congress to pass such legislation if it chose to. But this provision faced opposition from delegates such as Robert Barnwell-Rett, who did not want to insert any provision that might look like there was a moral stigma attached to slavery. It would look too much like a concession to the moral arguments of the abolitionists. In the end, of course, the slave trade was barred in the Confederate Constitution, but the people who voted for it supported it, of course, for economical and pragmatic reasons rather than moral ones. The delegates also decided to do away with the ability of presidents to seek reelection. Remember that at this time, presidents could seek reelection as many times as they wanted, and it was only because of the precedent established by George Washington that they stopped after their second term with the exception of FDR decades later. But the Confederate Constitution did away with this, establishing a single six-year term for the president. They did not want a king. However, after a lot of deliberation, they did reluctantly decide to keep the imperfect electoral college system imperfect in their view. But again, they had no better alternative. They also debated the matter of amending the Constitution. James Chestnut drafted a resolution that would have formally recognized the legitimacy of nullification, the brainchild of John C. Calhoun. But the proposal got voted down. Many historians have pointed to this act as a matter of Southern hypocrisy combined with the preamble that establishes a permanent federal government, saying that the South made secession unconstitutional. I find this claim spurious. It is a modern imputation on the Constitution to interpret the quote, unquote, permanency of the federal government as being the equivalent to making secession unconstitutional. This is the argument people have made to claim that Southern secession is unconstitutional. But the Southerners obviously did not hold this view, so it strikes me as entirely disingenuous to claim that this is the correct interpretation of the Confederate Constitution, even if you believe that this is the correct interpretation of the United States Constitution. It also seems to be a bit of a stretch to say that the rejection of an explicit nullification provision is the equivalent to the unconstitutionality of nullification. At most, the matter is an open question. Many opponents of the original Bill of Rights, for instance, opposed it because they sought as a redundancy, being that the rights were already implicit in the limited powers explicitly granted to Congress. I can't confirm that this is the view that the Southern delegates held when rejecting the nullification provision, but it is, at the very least, plausible. And I think historians are finding hypocrisy in the Confederate Constitution due to their own bias rather than honest research. No, give me wrong. I think there is plenty of hypocrisy that can be found in the Confederate government as there is with any government. I just don't find the claims about the hypocrisy over secession in the Confederate Constitution to be very well argued. It reeks of scholarly bias. I could be wrong about this, so take my commentary here only for what it is. Before I close this episode, there's one other major resolution that I think is too important to leave out. Shortly after Davis was selected as the provisional president, Wiley Harris of Mississippi proposed a resolution to declare all eight volumes of the statutes of the United States to be in effect in the Confederacy. The biggest controversy in this proposal was the tariff of 1857, which particularly upset Robert Barnwell-Rett. But Harris's resolution received more support than opposition, particularly because most delegates felt that the tariff would be necessary to raise revenue for the potential war. At this point, war was not a certainty and the Confederate leaders did want to try to avoid it, but they weren't naive about the situation, especially with the matter of Fort Sumter and Fort Pickens. So the resolution passed and the Confederate government was born with eight books of statutes already in place. Obviously, eight books of statutes is a drop in the bucket compared to the modern state, but I think we will find that there is constant tension between the Federalist ideology of more localized government and the inherent tendency toward centralization that seems to pervade any government. And for my part, I see the passage of this resolution as the start of the Confederacy's rapid move toward centralization. And by 1862, total government and wartime socialism, which we will see in future episodes. I've obviously skipped a lot of the details in the formation of the Confederate government, especially regarding some of the early provisions made to prepare for a possible war and to try to avoid war. But I'll come back around to much of this in the future. In the meantime, we finally get to look at the crisis at Fort Sumter that finally sets the war in motion. And this will be the topic of our next two episodes. For more content like this, visit mesis.org.