Charles Sumner reminded the Senate of how far America had fallen to pass the Fugitive Slave Act by comparing it to the Stamp Act. Both constituted usurpations of power by out of control legislatures. The people rose in righteous rebellion, revered founders and common Americans alike. The righteous indignation of a freedom-loving people forced the mightiest empire since Rome, in the full blush of its powers and across an ocean, to bow and recant. That took less than a year. The Fugitive Slave Act had endured for the better part of two by the time Sumner spoke in late 1852, but that did not deter the Senator from Massachusetts. He did argue that the law resembled the Stamp Act in many particulars, but he deemed it far worse a villainy.
Sumner damned the Stamp Act like a good American, but he considered it an offense against “civil liberty only; not of personal liberty”. A few cents’ tax with the chance for trial without a jury violated the sacred liberties of the people, but it didn’t reduce anyone to slavery. While the founders could, and did, discourse at length about how the British would enslave them as a matter of rhetoric, no one in London speculated on the future price of a prime George Washington.
in placing the Stamp Act by the side of the Slave Act, I do injustice to that emanation of British tyranny. Both, indeed, infringe important rights; one of property; the other the vital right of all, which is to other rights as the soul to the body
Freedom, Sumner averred, counted for more than property. There he probably different from some of the framers, for whom freedom flowed from property. We today could point to property in people specifically as where they found their freedom. Such a conclusion would undermine Sumner’s narrative of declension fatally. It probably wouldn’t have occurred to him at all any more than it did generations of historians who followed, until Edmund Morgan asked the question in American Slavery, American Freedom.
But what if the Fugitive Slave Law did meet constitutional snuff? Sumner looked over at his friend Andrew Butler and cited him on the question:
The Senator from South Carolina (Mr. Butler) was right, when, at the beginning of the session, he pointedly said that a law which could be enforced only by the bayonet was no law.
Sumner argued that a law might have all the formal endowments necessary to come into force, but absent “the essential support in the Public Conscience of the States” it could not survive. Popular defiance would render laws impotent, whether the Stamp Act, the Fugitive Slave Act, or civil rights legislation. In order to enforce a law, one has to have people on the ground willing to arrest, try, and convict offenders. Absent those, one may as well legislate against the sunrise. Since the Fugitive Slave Act would have to find enforcers in the free states, their public consciences would make it a dead letter.