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Howell Cobb and the Confederate Constitution

Posted on Friday, October 27, 2017 at 1:25 pm

From the first days of 1861 there was a flurry of activity in Montgomery, Alabama.

The state capitol was overrun with politicians from around the state pushing for immediate secession from the United States in the wake of South Carolina’s withdrawal from the Union. Delegates to the state constitution convention were already engaged in the drafting of a new constitution as well as passing the state’s Ordinance of Secession.

The few hotels and boarding houses were already crowded, and buzzing with bold predictions that the North would not nor could not do anything to oppose them, that if there was a war the South would finish it in a matter of weeks and that the ‘black Republican’ from Springfield was too weak to stop them from forming a new nation.

On February 4th a new crop of visitors appeared in the streets from South Carolina, Mississippi, Georgia, Florida and Louisiana there to form a new Confederate Constitution and pass the first laws in the fledgling Confederate Congress now that each of the states had formally left the Union. Most of the delegates were strangers to each other but some were among the most prominent men of the South. Chief among them was Howell Cobb from Georgia. Cobb’s life had strong parallels with the document he would help create in Montgomery over the coming weeks. A five term U.S. Representative, Cobb served one of those terms as the speaker of the house and with the absence of the vice president was briefly second in line to the presidency. Cobb served one two-year term as the governor of Georgia before taking the post of the secretary of the treasury department in the Buchanan administration. With the life long bachelor James Buchanan in the White House, Howell Cobb and his wife Mary Ann assumed the burden of leading the social life in the federal city. Buchanan by some reports wanted Cobb to follow him into the presidency and a 1859 book previewing the presidential election included a profile of Cobb while at the same time completely omitting Lincoln. Instead, Cobb found himself supporting the election of John Breckinridge in the 1860 election. At that time Cobb was a Unionist and an equally strong supporter of slavery as he expressed in his book A Scriptural Examination of the Institution of Slavery. Following the wishes of the majority of Georgia voters and firmly opposed to the perceived threat to slavery promised by the election of Abraham Lincoln, Cobb arrived ready to form a new nation.

After the delegates assembled Robert Borowell Rhett of South Carolina moved that Cobb be named the president of the convention, making him for a short time the head of the Confederate States of America. One Southern newspaper described Cobb as a “fat, pussy, round faced, jolly looking fellow.’’ The convention finished its work on the provisional constitution in just four days. The remarkable speed of the convention members was due to the fact that the constitution for their new nation was more than 90 percent an exact copy of the United States Constitution. Like Cobb, who had climbed nearly to the top of power in the United States, the provisional constitution affirmed most of the system from which it was rebelling, breaking away only on the issue of slavery.

In his influential pamphlet Common Sense urging the American Revolution Thomas Paine wrote “we have it in our power to begin the world over again.” While many Southerners claimed to be acting with the same motives and justifications of the Founding Fathers in breaking apart the country, they had no such aim in mind. Jefferson Davis later wrote of the convention that “it is an abuse of language that their act has been denominated a revolution.’’ The delegates believed they were securing rights that had been granted to the states and its citizens including most importantly the power to own slaves.

There was an embarrassing degree of truth in that view. At one time slavery was legal throughout America, North and South. George Washington, Thomas Jefferson and other Founders and Framers were slaveholders. John Adams, one of the early opponents of slavery, fought for protection of slave interests in the peace negotiations with the British as did Benjamin Franklin, the founder of one of the first abolitionist societies. The capitol building in Washington D.C. was literally built with slave labor. Even Abraham Lincoln, whose election was the catalyst (or excuse) for secession, repeatedly stated that he had no power under the Constitution to end slavery where it already existed.

The United States Constitution alluded to slavery indirectly at best. Slaves were “other Persons” who individually were reduced to the value of three fifths of free people. In addition to being demeaning on its face, the three fifths value of slaves increased the representation of Southern states in the House of Representatives which made any effort in Congress to restrict slavery exceptionally difficult or impossible as history bore out. The “Importation of such Persons as any of the States now existing shall think proper to admit’’ i.e. slaves were barred after 1808, and persons “held to Service or Labor in one State” had to be returned when they escaped into another state. No where in the original constitution does the word slave appear.

On February 8th at 10:30 in the evening the convention, voting by states, approved the provisional constitution of the Confederate States of America and, acting as the provisional Congress on the following day, unanimously elected Jefferson Davis and Alexander Stephens as president and vice president. The crowded, cheering galleries spilled into the streets where a hundred cannons fired in salute. Cobb proclaimed the separation was ‘’perfect, complete and perpetual’’ and that the new constitution would bring “a new era of peace, security and prosperity’’ for the South.

The convention began work on the permanent constitution for the Confederacy, appointing a twelve member committee to draft the document. “Everywhere political intrigue is as rife as in Washington” wrote Mary Chestnut, in town with her husband James. Many of the sessions were held in secret, as was the entire United States Constitutional convention in 1787. As president of the convention Cobb had the added duties of receiving delegations of visitors, drafting correspondence and gratefully receiving tokens of esteem from Southerners including a stone inkwell. Cobb told Chestnut the salaries of the delegates were kept secret so the hotel owners of Montgomery would not jack up the prices. “The bill would be sure to correspond with the pay,” Cobb said. On February 28th the committee finished its work and presented the draft to the delegates, sitting as the congress in the morning and the constitutional convention in the afternoon and a few evenings. By March the Texas delegation joined the convention.

On March 11th the convention adopted the permanent constitution of the CSA. To this day the Confederate flag has arguably been used or abused by various political factions, making it in the wrong hands a symbol of hatred or a tribune to heritage in the minds of others. The Confederate constitution has largely been spared that fate because there is little new in it for any interest group to latch onto. The Rebel flag lives on on belt buckles and bumper stickers, but there is little to appeal to the political right in the CSA Constitution.

The drafters of the Confederate Constitution made some edits in the text of the U.S. Constitution. Spelling was updated, for example “chusing Senators” in the U.S. Constitution became “choosing Senators’’ in the Confederate. Many capitalized words in the federal constitution were reset as lower case in the CSA constitution. The first twelve amendments to the U.S. Constitution, including an intact Bill of Rights, were spliced into the new document. But with few, notable exceptions the documents were fraternal twins.

The Confederate Constitution limited the president to one six year term. (Oddly the six year term of the vice president was unlimited.) The president was granted the line item veto, a power granted to most present day governors but denied the U.S. president. The president could dismiss government officials for cause but under certain circumstances was required to report the decision to the Senate. The Southern president was hampered from making recess appointments which bypass Senate ratification, a hot issue to this day.

The legislative powers under the CSA Constitution were largely the same under the U.S. Constitution. The CSA Congress had limitations placed on it regarding appropriations for internal improvements, subsidies for certain industries and trade protection. Appropriations had to be in specific amounts, bonuses were banned and each bill had to relate to a single subject, a requirement common in many contemporary state constitutions. Congress had the right to create the Confederate equivalent of the District of Columbia but with the pressure of the Civil War no national district was ever built. In what is an eerily relevant provision today the post office was required to be self sustaining within two years. Article III of the CSA Constitution created a Supreme Court which never met nor decided a single case.

For the last century and a half a fierce debate has raged over the cause of the Civil War (or War Between the States as diehards insist upon,) whether its root cause was slavery or states’ rights. The Confederate Constitution provides a compelling answer. In the preamble to the CSA document lip service is paid to the independent and sovereign nature of the individual states, but on the whole the seceding states had no more power under the new constitution than they did under the old. Two states could form a compact regarding a common river without the interference of the national government, and by a two thirds vote in both houses of the state legislature impeach a Confederate judge. But at the same time the CSA Constitution, like its counterpart in the United States, was the supreme law of the land, and Congress retained its power to pass any legislation ‘’necessary and proper’’ to further its goals. States were forbidden to allow non-citizens to vote. The Confederate government retained the power to suppress insurrection, exactly like the one they were committing against the United States. There was no recognition of the right of a state to leave the Confederacy as some of the southern states claimed they had against the United States.

Whatever the defects of the Confederate Constitution it was at least honest on the issue of slavery, saying exactly what it meant. Congress was explicitly forbidden to pass any law “denying or impairing the right of property in negro slaves.” The provisions for the return of fugitive slaves were set out clearly, and the right to transport slaves was enshrined. The Confederate Constitution did continue the ban on importing new slaves. As some scholars have suggested this was less about the evils of the slave trade than an attempt to maintain the value of slaves already held in America and to appease the United Kingdom’s growing opposition to the slave trade in hope of British recognition of the new nation. The new constitution carried over the original formula for representation in Congress by counting slaves as three fifths of a person. Slavery was, as vice president Alexander Stephens said, ‘’the cornerstone’’ of the Confederacy.

There is, surprisingly, little in the Confederate Constitution to inspire modern social conservative interests. Although the preamble invoked the ‘’favor and guidance of Almighty God.” the separation of church and state, and the ban on a religious test for officeholders were left unchanged. The rights of the accused, the burden of the government to overcome the presumption of innocence, the ban on cruel and unusual punishment and the strict definition of the crime of treason were also all left unchanged. Even the U.S. Constitution’s Second Amendment was left intact.

In his inaugural address Jefferson Davis proclaimed the new constitution as “differing only from that of our fathers in so far as it is explanatory of their well-known intent.” Howell Cobb sent the final draft of the constitution to the states for ratification which only required approval of five states to come into force. In most states the ratification proceeded smoothly, Georgia for one approved it unanimously. The exception, as often was the case, was South Carolina. A minority of ‘fire eaters,’ the hard core secessionists and believers in the sanctity of slavery opposed the document as too mild, especially on the issue of admitting free states into the Confederacy.

After the Montgomery convention Cobb was commissioned as a colonel in the 16th Georgia Infantry. Quickly raising to the rank of general Cobb commanded troops in the battles of the Peninsula Campaign, Seven Days and Antietam. In 1863 he was promoted to major general and put in charge of affairs in Georgia and Florida. During his tenure Cobb ordered the establishment of the prisoner of war camp at Andersonville, Georgia, the scene of the worst atrocities committed during the Civil War.

During the March to the Sea Cobb’s plantation came under special scorn by Sherman’s troops who burned it to the ground. Cobb led troops in the last futile battles of the Confederacy, finally surrendering in Columbus, Georgia, on Easter Sunday, 1865. With the defeat the Confederate Constitution was dead letter, of no legal effect whatever, as was Cobb’s career and public life. After the war Cobb delayed taking the oath of allegiance. He was astonished, as he wrote his wife, that the freed blacks were behaving ‘’better than we had a right to expect.’’ During a visit to New York City in 1869 Cobb died and his body was taken back to Georgia.

After the Civil War the commandant of Andersonville was tried for war crimes and executed. The precedent of the prosecution of war crimes, committed under Cobb’s command and upon his ultimate responsibility, established the foundation of the Nuremberg war crimes trials after World War II and subsequent prosecutions of crimes against humanity. That, and not the Confederate Constitution, is Howell Cobb’s legacy.

-By Greg Bailey