Charles Sumner informed the Senate that the work of his neighbor in the chamber, James Mason, imperiled white liberties as well as black. The Fugitive Slave Act of 1850 had no language to restrict its application to black Americans. A slave catcher could, in theory at least, accuse anyone on the street of having absconded, haul that person before a commission where they could not speak on their own behalf, and have them bundled off to the slave states for a life in bondage without any of the customary protections that white Americans saw as their birthright. They would have not a trial, but “summary proceedings.” They would surrender the power to enslave a white man at will to a civil servant appointed by a court and dismissed by the court on any whim at all, and pay that commissioner more to rule for slavery than freedom. The commissioner could hear evidence without opposition and without the accused having a chance at cross-examination. The Fugitive Slave Act trampled Habeas Corpus. Finally, in defiance of the founders’ clear will at the Constitutional Convention, it rendered fugitives at public expense.
Those sins matter, then and now, but it does come across as a lawyer’s indictment. Sumner focused for most of a page on procedural guarantees and rights one exercises in the context of a trial. While that doesn’t trivialize them at all, it does render them a bit esoteric for people who don’t expect to face charges in a court of law. To those Sumner added a right dear to far more Americans:
The Constitution expressly secures the “free exercise of religion;” but this Act visits with unrelenting penalties the faithful men and women, who may render to the fugitive that countenance, succor, and shelter, which in their conscience “religion” seems to require.
As with Sumner’s condemnation of the Fugitive Slave Act for not limiting itself to whites, this raises an unlovely set of issues. Few Americans want anyone sufficiently white and of sufficiently familiar faith to suffer interference in the exercise of their religion. This results in preferential treatment for religions familiar to white Americans, which in Sumner’s time mainly meant Protestant denominations. But we also think the law ought to apply to everyone the same and that people should not suffer compulsion to comply with religious dictates not of their own choosing. These values conflict on nearly every point. When religions require the usage of controlled substances as part of their practice, we scruple little about outlawing them. When they require us to impose our sexual mores on others, especially women, millions of Americans will cheer.
I write this with modern conflicts in mind, but in Sumner’s time one might well have objected that antislavery Christians impinged the freedom of conscience of proslavery Christians by interfering with the God-ordained institution of slavery. Antislavery Christians would answer back that interference with opposing slavery and forcing them to act in conformance with its preservation trampled their own devout convictions. Both could have it perfectly right. As moralists, we can prefer one or the other and invent a constitutional doctrine to justify it like we do any of our other preferences, but the essential conflict remains. Someone has to lose and Sumner, like the rest of us, chose the other side.