It is a curious illustration of the combat of the powers of light and
darkness for the possession of the world that, on this 3d day of March,
1863, the day of jubilee, on which twenty millions of serfs become free
forever, I forward to you an insidious document in the interest of human
slavery.
I have the honor to be, with the highest respect, your obedient
servant,
Mr. Benjamin to Mr. Lamar.
No. 1.]
Confederate States of
America, Department of State,
Richmond,
January 15, 1863.
Sir: It has been suggested to this
government, from a source of unquestioned authenticity, that after
the recognition of our independence by the European powers, an
expectation is generally entertained by them, that in our treaties
of amity and commerce a clause will be introduced making
stipulations against the African slave trade. It is even thought
that neutral powers may be inclined to insist upon the insertion of
such a clause as a sine qua non.
You are well aware how firmly fixed in our constitution is the policy
of this confederacy against the opening of that trade; but we are
informed that false and insidious suggestions have been made, by the
agents of the United States at European courts, of an intention to
change our constitution as soon as peace is restored, and of
authorizing the importation of slaves from Africa. If, therefore,
you should find in your intercourse with the cabinet to which you
are accredited that any such impressions are entertained, you will
use every proper effort to remove them; and if an attempt is made to
introduce into any treaty which you may be charged with negotiating,
stipulations on the subject just mentioned, you will assume in
behalf of your government the position which, under the direction of
the President, I now proceed to develop.
The constitution of the Confederate States is an agreement made
between independent States. By its terms all the powers of
government are separated into classes as follows, viz:
1st. Such powers as the States delegate to the general
government.
2d. Such powers as the States agree to refrain from exercising,
although they do not delegate them to the general government.
3d. Such powers as the States, without delegating them to the general
government, thought proper to exercise, by direct agreement between
themselves contained in the constitution.
4th. All remaining powers of sovereignty which, not being delegated
to the Confederate States by the constitution, nor prohibited by it
to the States, are reserved to the States, respectively, or to the
people thereof.
On the formation of the constitution, the States thought proper to
prevent all possible future discussions on the subject of slavery,
by the direct exercise of their own power, and delegated no
authority to the confederate government, save immaterial exceptions,
presently to be noticed.
Especially in relation to the importation of African negroes was it
deemed important by the States that no power to permit it should
exist in the confederate government. The States, by the
constitution, (which is a treaty between themselves of the most
solemn character that States can make,) unanimously stipulated “that
the importation of negroes of the African race, from any foreign
country other than the slaveholding States or Territories of the
United States [Page 863] of America,
is hereby forbidden; and Congress is required to pass such laws as
shall effectually prevent the same.”—(Art. 1, sec. 9, par. 1.)
It will thus be seen that no power is delegated to the confederate
government over this subject, but that it is included in the third
class above referred to, of power exercised directly by the
States.
It is true that the duty is imposed on
Congress to pass laws to render effectual the prohibition above
quoted. But this very imposition of a duty on Congress is the
strongest proof of the absence of power in the President and Senate
alone, who are vested with authority to make treaties. In a word, as
the only provision on the subject directs the two branches of the
legislative department, in connexion with the President, to pass laws on this subject, it is out of the power
of the President, aided by one branch of the legislative department,
to control the same subject by treaties; for there is not only an
absence of express delegation of authority to the treaty-making
power, which alone would suffice to prevent the exercise of such
authority, but there is the implied prohibition resulting from the
fact, that all duty on the subject is imposed on a different branch
of the government.
I need scarcely enlarge upon the familiar principle, that authority
expressly delegated to Congress cannot be assumed in our government
by the treaty-making power. The authority to levy and collect taxes,
to coin money, to declare war, &c., &c., are ready examples,
and you can be at no loss for argument or illustration in support of
so well recognized a principle.
The view above expressed is further enforced by the clause in the
constitution which follows immediately that which has already been
quoted. The second paragraph of the same section provides that
“Congress shall also have power to prohibit the introduction of
slaves from any State not a member of, or territory not belonging
to, this confederacy.” Here there is no direct exercise of power by
the States which formed our constitution, but an express delegation
to Congress. It is thus seen that while the States were willing to
trust Congress with the power to prohibit the introduction of
African slaves from the United States, they were not willing to
trust it with the power of prohibiting their introduction from any
other quarter, but determined to insure the execution of their will
by a direct interposition of their own power.
Moreover, any attempt on the part of the treaty-making power of this
government to prohibit the African slave trade, in addition to the
insuperable objections above suggested, would leave open the
implication that the same power has authority to permit such
introduction. No such implication can be sanctioned by us. This
government unequivocally and absolutely denies its possession of any
power whatever over the subject, and cannot entertain any
proposition in relation to it.
While it is totally beneath the dignity of this government to give
assurances for the purpose of vindicating itself from any unworthy
suspicions of its good faith on this subject, that may be
disseminated by the agents of the United States, it may not be
improper that you should point out the superior efficacy of our
constitutional provision to any treaty stipulations we could make.
The constitution is itself a treaty between the States, of such
binding force, that it cannot be changed or abrogated without the
deliberate and concurrent action of nine out of the thirteen States
that compose the confederacy. A treaty might be abrogated by a party
temporarily in power in our country, at the sole risk of disturbing
amicable relations with a foreign power. The constitution, unless by
approach to unanimity, could not be changed without the destruction
of this government itself; and even should it be possible hereafter
to procure the consent of the number of States necessary to change
it, the forms and delays, designedly interposed by the framers to
check rash innovations, would give ample time for the most mature
deliberation, and for strenuous resistance on the part of those
opposed to such a change.
[Page 864]
After all, it is scarcely the part of wisdom to attempt to impose
restraint on the actions and conduct of men for all future time. The
policy of the confederacy is as fixed and immutable on this subject
as the imperfection of human nature permits human resolve to be. No
additional agreements, treaties, or stipulations can commit these
States to the prohibition of the African slave trade with more
binding efficacy than those they have themselves devised. A just and
generous confidence in their good faith on this subject, exhibited
by friendly powers, will be far more efficacious than persistent
efforts to induce this government to assume the exercise of powers
which it does not possess, and to bind the confederacy by ties which
would have no constitutional validity. We trust, therefore, that no
unnecessary discussions on this matter will be introduced into your
negotiations. If, unfortunately, this reliance should prove
ill-founded, you will decline continuing negotiations on your side,
and transfer them to us at home, where, in such event, they could be
conducted with greater facility and advantage, under the direct
supervision of the President.
With great respect, your obedient servant,
J. P. BENJAMIN, Secretary of
State.
Hon. L. Q. C. Lamar, Commissioner, &c., &c., St. Petersburgh,
Russia.
