We left Charles Sumner discoursing on how the Fugitive Slave Act of 1850 had serious constitutional defects. It did not specify only black Americans might suffer rendition as slaves and it impinged on the freedom of religion for those who felt obliged from on high to aid fugitive slaves. That brought him to the Fugitive Slave Act of 1793. That product of the Washington years came out of an early Congress, when the founders themselves still dominated national politics. For Sumner to argue that the nation had lost its way and abandoned their vision of slavery’s slow demise, he had to reckon with that law.
The Act of 1793 proceeded from a Congress that had already recognised the United States Bank, chartered by a previous Congress, which, though sanctioned by the Supreme Court, has since in high quarters been pronounced unconstitutional. If it erred as to the Bank, it may have erred also as to fugitives from labor.
This put Sumner on thin ice on two fronts. First, he sounded more like a Democrat than a former Whig. That can’t have calmed nerves back home, even if the rest of the speech resounded with the rhetoric Sumner’s constituents demanded. Then Sumner put himself in a corner by standing on the vision of the founders and then arguing that some of those founders themselves had gotten it wrong. By admitting errant founders Sumner opens the door for a bold proslavery man to argue that even if the founders opposed slavery, one could dismiss it as one of their mistakes. South Carolina radicals had already gone so far for Jefferson’s impotent scruples.
Of course sounding like a Democrat and using the party’s great shibboleth in the Bank of the United States, Sumner made a pointed attack on the majority party of the nation and its southern plurality. He continued by hammering them on limited government, arguing that the Fugitive Slave Clause did not vest any enforcement power in the national government. As faithful believers in strict construction, Democrats ought to take the absence of an express vesting of power as a prohibition upon exercising it. This reduced the clause to a matter of interstate comity, not quite something which they had a rock-solid obligation to execute without question and definitely something that the nation could not intervene to insist they held to in a certain form. In other words, Sumner argued that state’s rights prevented the nation from acting in fugitive renditions. A state obviously lacked the power to coerce another state, which put differing states at an impasse.
The framers, then, “wise and careful men” had deliberately not granted Congress any such power but rather consigned renditions to the level of compacts between the several states. One must, under strict constructionist legal thinking, not read into the Constitution powers not precisely and explicitly granted. Nowhere did the document say anything like that, if you asked Charles Sumner. The Congress could, by contrast, legislate uniform rules of naturalization and bankruptcy. Had the framers meant to enshrine fugitive rendition among that body’s powers, they knew how to do it and could have easily done so. In that event, “all State control of the subject would have been superseded” in favor of a government
like Nimrod, the mighty Hunter, with power to gather the huntsmen, to halloo the pack, and to direct the chase of men, ranging at will, without regard to boundaries or jurisdictions, throughout all the States.