In attacking the Fugitive Slave Act of 1850 as unconstitutionally reversing the presumption of freedom as the national rule, Sumner had to explain how he squared such a conviction with the existence of the Fugitive Slave Clause in the Constitution. He began by arguing that the clause didn’t deserve the importance given to it, coming into the document as an afterthought and amid controversy. He went on to stress that even after its adoption and the passage of the first Fugitive Slave Act in 1793, fugitive renditions remained uncommon. Northern mobs and jurists often ignored any notional requirements of the law or the Constitution in practice. All of that hardly pointed to the surrender of fugitive slaves as a vital, central part of the nation’s existence. Instead it argued that even if the Constitution in some sense accepted slavery, the document did not go out of its way to institute bondage.
Which brought Sumner’s narrative of declension to its head in the new law of 1850. He took a moment to admire its thoroughness, commending the “masterly subtlety” that crafted the legislation. As an intellectual, he considered it an excellent specimen. As a Constitutionalist, as a human being, and as a Christian he could only condemn it. He may stand alone before the Senate, but he saw at his side “all the patriots and martyrs of history” and “all the Fathers of the Republic.” Sumner declined, as a gentleman must, to note also the presence of his modesty.
But he came as a man of law to the Senate, not as a patriotic necromancer or moralist and so moved on to the law. The Fugitive Slave Act offended the Constitution, rightly considered, in part by its color-blindness:
consider that by its language it is not restrained to any special race or class, to the African or to the person with African blood; but that any inhabitant of the United States, or whatever complexion or condition, may be its victim. Without discrimination of color even, and in violation of every presumption of freedom, the Act surrenders all, who may be claimed as “owing service or labor” to the same tyrannical proceedings.
Sumner told the Senate that men in that room with him had written a law which could enslave a white man. It would take only an enslaver claiming that the victim belonged to him to make it so, with the commissioner bribed to the tune of $10 to find in his favor. Given that enslaved people could run the gamut of color, an unscrupulous slave catcher who couldn’t find a black victim might as well just nab a random white man off the street. Even whites who hated blacks, never in short supply in the United States, should wake to that peril. Once accused, they fell under the law and their civil protections against arbitrary arrest evaporated. In choosing to treat black Americans as the law did, they also accepted its treatment of whites.
Sumner gave the Senate an improbable scenario, given the racial mores of the men who would come north to steal people. Even in the Lower South, someone could escape slavery by proving whiteness to a court. But like civil libertarians of every age, Sumner pointed out how power given narrowly to infringe the liberties of a hated group could easily expand to afflict others.