“Piling one mass of elaborate error upon another mass” The Crime Against Kansas, Part 5

Charles Sumner (Republican-MA)

Prologue, Parts 1, 2, 3, 4Full text

Charles Sumner went for the low blow. Andrew Pickens Butler, an elderly man, had then-recently suffered a stroke that left him with some facial paralysis. As a result, he tended to drool and spray when he spoke. Sumner went beyond criticizing the politics and morals of his proslavery oratory and damned him for “loose expectoration.” This went somewhat beyond the ordinary bounds of political invective, even in an era when making fun of disabilities didn’t arouse the kind of opprobrium it might now. Hearing all of this while angrily pacing the Senate chamber, Stephen Douglas told a reporter “That damn fool will get himself killed by some other damn fool.”

Of course Sumner had choice words for Douglas too. The Little Giant made the Kansas-Nebraska Act with his enthusiasm for the Pacific railroad, his political ambitions, and his eagerness to sweep aside Native Americans. “[T]he squire of Slavery” defended his course on Kansas in a “labored address,”

piling one mass of elaborate error upon another mass-constrained himself, as you will remember, to unfamiliar decencies of speech. Of that address I have nothing to say at this moment

Anthony Burns

And if you believe that, Sumner has some beachfront property in Kansas that you may like. Most of The Crime Against Kansas responds to Douglas and others. To open that, five pages in, Sumner engaged in a lengthy recapitulation of Kansas history from “the Missouri discussion” on down. He indicted Franklin Pierce and slavery’s friends in Congress for trampling over the rules of the House and Senate to organize the territory with slavery permitted and took swipes at the blue lodges. He made all the familiar accusations of conspiracy and rehearsed the attacks upon democracy in the territory. He called out Pierce further for claiming impotence to enforce law and order within Kansas against proslavery lawlessness when the president exerted himself eagerly to enforce it in Massachusetts to deliver up Anthony Burns.

At length -nine pages in, now- Sumner came to the Wakarusa War:

in the latter days of November, 1855, a storm, long brewing, burst open the heads of the devoted people. […] like the Heathen of old, they [proslavery Missourians] raged, particularly against Lawrence, already known, by the firmness of its principles and the character of its citizens, as the citadel of the good cause. On this account they threatened, in their peculiar language, to “wipe it out.” Soon the hostile power was gathered for this purpose.

Wilson Shannon

That this all arose out of a proslavery man murdering an antislavery man and led to a proslavery force marching against an antislavery town made the whole thing downright perverse, and multiplied its evil in Sumner’s mind. Wilson Shannon “[t]he weak Governor, with no faculty higher than servility to slavery” only compounded the error further by giving official license to the mob. The Senator passed over the role Shannon played in defusing the situation, though considering how heavily he contributed to bringing things to that dire point one can hardly grant him much credit. He tried to clean up the mess only after making it.

Threats, Dogs, and Whips

Charles Sumner (Free Soil-MA)

Charles Sumner damned Stephen Douglas as a Northern man with Southern principles, a doughface, for his Kansas-Nebraska Act. Douglas hit back, noting how Sumner had gone in all of a year from castigating the Compromise of 1850 to praising it as restoring the peace that Kansas-Nebraska would undo. The Massachusetts Senator had such purity of principle that he supported an old proslavery hand like Martin Van Buren for president in 1848. But Sumner’s oratory left a mark. Even a senator from North Carolina congratulated Sumner on everything about it save choosing the wrong side. The Masachusetts papers lit up with praise for Sumner again.

The satisfaction reached even into Bay State Whiggery. The Massachusetts Whigs supported the Compromise of 1850 with held noses, taking the lump on Daniel Webster’s word that they had to do it to save the nation. With the South bent on new conquests, Godlike Daniel safely in the ground, and land that Massachusetts farmers might want to move off to at stake, the situation changed. They turned on their man in the Senate, Edward Everett, when he came out against the bill in a late and feeble manner. Kidney stones took him off the floor for a vote and his former supporters mocked him for it. Adoring letters poured in for Sumner from old allies and former Everett men alike. Delighted, Sumner read them aloud to the Sewards. Inspired, he even entered into spontaneous debate for a while.

Anthony Burns

The Kansas-Nebraska Act became law all the same. When the Anthony Burns affair erupted at almost the same moment, proslavery men blamed Sumner for inciting riot in Boston with his speeches in Washington. Sumner received threats on his safety, which prompted a future governor of Connecticut to offer his services as a bodyguard. Less reassuringly, a correspondent informed the Senator that if he died he would become a martyr to freedom.

Sumner, a large man, responded to the threats on his life by ensuring they reached the attention of the newspapers and otherwise ignored them. He walked about Washington, never a friendly place for outspoken antislavery men, unarmed and unaccompanied. He looked forward to stepping up his rhetorical attacks on slavery, but his new colleague from Massachusetts -Everett resigned courtesy of those kidney stones- got the jump on him with a new petition for repealing the Fugitive Slave Law. He promptly withered under a counterattack built around the fact that some of the signers participated in Burns’ rescue. Sumner stepped in to defend him.

Andrew Butler (D-SC)

As Sumner finished up his latest condemnation of the law, Andrew Butler came into the Senate chamber. He listened to his friend and the proverbial steam shot from his ears. Denouncing Sumner’s speech as one not becoming the Senate, he demanded to know if Massachusetts would render over a single fugitive if the Congress repealed the law. The state had a constitutional obligation, so would it do its duty? Trial or no, whatever process instituted, would Massachusetts deliver a person into slavery or would all that folderol just obscure a flat refusal to abide by the Constitution?

Sumner answered, “Is thy servant a dog, that he should do this thing?” Then the fireworks really started. Sumner profaned his oath to support and defend the Constitution. He had gone mad. The Senate should expel him. Sumner fought back, castigating his critics as men of “plantation manners” who treated the Senate itself like answered to their whips. The vicious debate spawned serious talk of expelling Sumner as a perjurer and traitor, but the matter dropped when the adherents learned they lacked the necessary majority.

 

Kansas, Boston, and Treason in the Nineteenth Century, Part Two

Samuel Jones

Samuel Jones

In October, 1851, Samuel Curtis gave his federal grand jury a definition of treason (PDF). He expected, in a Boston where antislavery Americans had lately rescued a few fugitive slaves from those who aimed to steal them back to slavery, that the jury might need to know. Curtis laid out a three point test: The accused must conspire. That conspiracy must involve obstructing the enforcement of a law of the United States. The conspiracy must then use force to that end. All of these applied to Bostonians who had saved enslaved Americans from recapture. Together, these things constituted levying war against the United States. They might, depending on how one read them, apply to the free state movement in Kansas as well.

Curtis did better than nineteenth century bullet points. He wanted his jurors to understand the law thoroughly and so gave a further explanation that runs to about a page of printed text. That section opened with an important qualifier:

It is not enough that the purpose of the combination is to oppose the execution of a law in some particular case, and in that only. If a person against whom process has issued from a court of the United States, should assemble and arm his friends forcibly to prevent an arrest, and in pursuance of such design, resistance should be made by those thus assembled, they would be guilty of a very high crime, but it would not be treason

In a Bostonian context, this means one could throw together to rescue Shadrach Minkins or Anthony Burns and not commit treason. Over in Kansas, Samuel Jones had a warrant to arrest Jacob Branson. He had that warrant under the authority of the federally-constituted territorial government. I don’t know if a territorial court operating under that law counts as a court of the United States rather than one of Kansas Territory, but even granting Jones the point Branson and his rescuers might fall short of Curtis’ definition of treason. They opposed the execution of the law, by force, in one particular case.

Samuel Newitt Wood

Samuel Newitt Wood

However, if the individuals combined

forcibly to prevent any person from being arrested under that law, and with such intent, force is used by them for that purpose, they are guilty of treason.

Here Samuel Newitt Wood and company get into deeper trouble. They as much as told Jones that they would rescue anybody he came after with a warrant. Though the people of Lawrence tried to disavow the rescue of Branson, they had made rhetorical pledges to resist Kansas’ laws too. Their resistance didn’t extent to force, yet. They took pains to emphasize they resisted the laws of Kansas, not the United States. Charles Robinson, at least, understood resisting Wilson Shannon by force as resisting federal authority. Whether he meant that as a precise legal judgment or just a recognition of how Shannon might treat things, the ambiguity remains.

Robert E. Lee, Virginia aristocrat, military officer, and future confederate general

Robert E. Lee, slave catcher

One might argue that the resistance to one law doesn’t really count, just as resisting on behalf of one person doesn’t count. Curtis anticipated the argument and would have nothing of it:

The law does not distinguish between a purpose to prevent the execution of one, or several, or all laws. Indeed, such a distinction would be found impracticable, if it were attempted. If this crime could not be committed by forcibly resisting one law, how many laws should be thus resisted to constitute it? Should it be two, or three, or what particular number short of all? And if all, how easy would it be for the worst of treason to escape punishment, simply by excepting out of the treasonable design, some one law.

The judge has a point. If the Army of Northern Virginia scrupulously held to the fugitive slave law, and they did so enthusiastically when they had the chance in Pennsylvania, then that hardly made them innocent of treason. Robert E. Lee commanded, among other things, the largest slave patrol in American history.

Kansas, Boston, and Treason in the Nineteenth Century, Part One

Reading sources hostile to the free state movement, and antislavery in general, one often comes across mention of their treasonable nature. With regard to the wildcat state government that came to operate in Kansas in late 1855 and early 1856, the connection doesn’t require much explanation. They really did aim to set up an illegal government within the territory of the United States, in opposition to the legally-constituted government placed in charge of that same territory. When the guilty parties work only to obstruct the fugitive slave law, to the point of violence, the accusations seem more strained. Strained, however, does not mean insincere, hysterical, or inaccurate. I have previously tried to understand accusations of treason in the context of those making them and the situation at hand. I lacked a grounding in nineteenth century jurisprudence necessary to say more. Thanks to Al Mackey’s research (PDF), I can do better now.

On October 15, 1851, your author’s negative one hundred twenty-ninth birthday, Justice Samuel Curtis of the United States Circuit Court in Boston issued instructions to a grand jury. It doesn’t seem that Curtis had a specific case in mind when he gave these instructions, but rather made them in anticipation of cases likely to come before the jurors during their term. We know that Boston didn’t have another fugitive rescue until Anthony Burns, but he didn’t.

Curtis opens by explaining why we must take treason so seriously, noting that it alone receives a precise definition in the Constitution.

It is there made to consist in levying war against the United States, or adhering to their enemies, giving them aid and comfort. This language is borrowed from an ancient English statute, enacted in the year 1352 (25 Edw. III.), mainly for the purpose of restraining the power of the crown to oppress the subject by arbitrary constructions of the law of treason.

That all sounds very high school civics. The Founders, understanding that accusations of treason could lead to serious oppression, precisely defined the crime. Themselves a band of traitors against the crown of Great Britain, they had experience on both sides of the law. To argue that either small bands rescuing fugitive slaves or a protest movement oriented towards achieving legitimacy with the United States government levied war against it may seem quite the stretch to us.

Curtis didn’t think so. According to “settled interpretation”

the words “levying war,” include not only the act of making war for the purpose of entirely overturning the government, but also any combination forcibly to oppose the execution of any public law of the United States, if accompanied or followed by an act of forcible opposition to such law in pursuance of such combination.

Curtis couldn’t read the free state movement into this back in 1851, but surely would have recognized it later just as he recognized treason in fugitive slave rescues. He provided the jury a helpful checklist for diagnosing traitors:

(1) A combination, or conspiracy, by which different individuals are united in one common purpose.

Whether the Boston vigilance committee or the free state party, we have that. The Blue Lodges gave the border ruffians much the same. But anybody could unite in common purpose. If you go out with friends to see a movie, you’ve done as much.

(2) This purpose being to prevent the execution of some public law of the United States by force.

Our night at the movies slips the net here. The free state movement, for all its rhetoric of resistance, also wrapped itself in the flag and declared specifically for a public law of the United States: the Kansas-Nebraska Act. Though one sees occasional reference to the Kansas-Nebraska Act’s sanctity from proslavery men, they generally defended their activities in terms of counteracting efforts by Emigrant Aid Societies. They concerned themselves, on paper, with tit for tat rather than the sanctity of the law, except for the Kansas slave code.

The free state party, whatever occasional disavowals its leaders made, did have active military companies enlisted for its cause. Prior to fooling Wilson Shannon into authorizing them, those forces occupied a deeply ambiguous role. However, they did not meaningfully satisfy Curtis’ third criterion:

(3) The actual use of force, by such combination, to prevent the execution of that law.

Nobody attacked the United States Army, revenue officers, or federal marshals. Andrew Reeder faced armed threats in regard to the execution of his duties, but the proslavery men declined to consummate them. Benjamin Franklin Stringfellow attacked the governor and the matter ended with pistols drawn, but he had a personal grievance against Reeder for calling him a border ruffian.

By a very strict reading Curtis, it seems no one in Kansas had committed treason. The judge, however, intended a more expansive reading and offered it up to his jurors.

South Carolina’s First Nullification

Calhoun

John C. Calhoun

One simply can’t run a country according to the plan that the nullifiers and states rights men advocated. If a state can overrule federal law on its own say-so, then federal law loses its force. With federal law impotent, the federal government becomes irrelevant and soon dissolves. Some vestiges might remain, but as a practical matter one reduces the Union to a collection of smaller, quarreling nations. Given many states had neither the population nor the economy to manage easily on their own, they would then likely consolidate into somewhat like-minded blocs. These groups would probably not repeat the same mistakes as the previous consolidation. Some nullification proposals foresaw essentially that, most notably the idea that the United States should try having two presidents with veto power over one another. One would come from the North, the other from the South. The Southern president would thus keep the Union forever safe for slavery.

Roger Taney, Chief Justice of the Supreme Court

Roger Taney, Chief Justice of the Supreme Court

The criticism holds true for matters large and small, in principle. We could leave things there, but doing so would require us to ignore the realities of the past. Certainly one could not expect a nation to endure large-scale acts of nullification. If a state or seven rejected losing the presidency or the program of a victorious party in national elections, that more obviously strains the Union and puts nineteenth century democracy in doubt than if it nullifies on a smaller scale. As a practical matter, many Northern states nullified the Fugitive Slave Act. Wisconsin took the extra step of doing it outright, leading to the Taney Court ruling that states had no power to nullify federal laws in Abeleman vs. Booth. Therein, the Court made much the same argument in contemplating the assertion that a state court could interfere with and prevent the operation of federal law:

It would seem to be hardly necessary to do more than state the result to which these decisions of the State courts must inevitably lead. It is, of itself, a sufficient and conclusive answer, for no one will suppose that a Government which has now lasted nearly seventy years, enforcing its laws by its own tribunals and preserving the union of the States, could have lasted a single year, or fulfilled the high trusts committed to it, if offences against its laws could not have been punished without the consent of the State in which the culprit was found.

The rebelling states, of course, would without a trace of irony cite the practical nullification of the Fugitive Slave Act by the North as one of the injustices which drove them to rebellion. They correctly understood the tradition of states rights rhetoric: the issue, however contested, did not go our way and therefore we claim the right to declare ourselves winners. Obviously no nation could let such a thing stand and call itself democratic even by nineteenth century terms. Yet the United States did eventually let it stand. The nation did not spend vast sums and tie up the military to do as it had done to Anthony Burns a second time. Before that, it accepted nullification of a kind from South Carolina. I draw this account from Freehling’s Prelude to the Civil War: The Nullification Controversy in South Carolina 1816-1836.

Anthony Burns

Anthony Burns

South Carolina’s cotton flowed out of the nation through Charleston and a few other lowcountry ports. Those ports thus naturally had ships in and out regularly, if nothing on the volume that New York, Baltimore, Boston, or New Orleans did. Like any functioning port, Charleston saw ships from diverse places. Many of its regular visitors hailed from the North and abroad. These ships had the usual complements, including some black seamen. Those seamen could roam freely about Charleston. To Charleston’s whites, that meant that northern blacks tainted by abolitionism could speak to their slaves. Worse still, Haitian seamen could walk free and tell anybody who asked about their country’s successful slave revolt. All of this in a region of the state where enslaved blacks vastly outnumbered whites. To further complicate matters, many enslavers from Haiti had passed through Charleston when fleeing the revolution. In the 1820s, they had had direct, personal knowledge of what a real slave uprising looked like. If they missed the significance, than the fact that Denmark Vesey used Haiti as an example of what his conspiracy could achieve would have highlighted it to even the dullest wits.

Charleston hung Denmark Vesey on July 2, 1822. Before he died, he brought the black seaman “problem” further into the limelight. With the lowcountry’s enslavers anxious about revolts, feeling embattled by the recent debates over the fate of slavery in Missouri, and a fresh uprising narrowly averted, they felt they had to do something. To answer the dire menace to their lives and their property in lives, South Carolina’s enslavers passed a law that required every black sailor locked away in the town jail for the duration of his ship’s sojourn in Charleston. Thus Charleston imprisoned the free to secure the enslaved at the end of the year.

All of that worked out just fine for Charleston’s fretting whites and just terribly for its free black visitors, precisely as intended. However, it put South Carolina on the wrong side of the United States and the United Kingdom. The two nations had a treaty granting their sailors free access to one another’s ports. This treaty, declared the Constitution

shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

South Carolina passed a state law to the contrary. The UK protested to the Secretary of State, John Quincy Adams. Freehling says that Adams might have gotten Charleston to ignore the law for a time. By the middle of the next year, Haitian and other black seamen moved about Charleston freely once more. This did not suit Charleston’s still-anxious citizens. They arranged a mass meeting in late July, forming the South Carolina Association to supervise enforcement of all South Carolina’s laws controlling black lives. The association named standing committees to do that work, which they soon commenced.

That enforcement led in short order to a court case. Charleston’s sheriff seized a free Jamaican black named Harry Elkinson and locked him up. Elkinson protested and sought habeas corpus proceedings, which he got. Supreme Court Justice William Johnson found the seaman law in violation of treaty and therefore invalid. However, Johnson held that he couldn’t order Elkinson’s release as his power extended only to federal prisoners. The South Carolina Association, for its part, declared the state sovereign and insisted that it had not surrendered its power to suppress revolts. Any act designed toward that end rightfully fell within its power, not the capacity of the United States. The state had not yet articulated a full-blown theory of nullification as Calhoun would later invent, but in pleading its case Benjamin F. Hunt and Isaac E. Holmes laid out an important precursor. Johnson didn’t buy it and laid out a strong refutation in his opinion:

Where is this to land us? Is it not asserting the right in each state to throw off the federal Constitution at its will and pleasure?

John Quincy Adams

John Quincy Adams

Johnson’s opinion provoked a firestorm in South Carolina. If the state could not pass laws to govern its slaves and keep them in slavery, then how could it retain slavery at all? All Haiti’s alleged woes came back to a distant government meddling with slavery. Now they received the same at the imperious hands of a Supreme Court justice. The state ignored the decision and continued jailing sailors. John Quincy Adams kept getting protests from the United Kingdom. He reached out to the Attorney General, William Wirt, for an opinion on the law. Wirt came down firmly against it. In July of 1823, Adams forwarded Wirt’s argument and the protests to South Carolina, asking the legislature to fix the problem.

Though South Carolina’s legislature could not settle on what tone to take, they agreed on the substance. The Senate held that “self preservation”

will never by this state, be renounced, compromised, controlled, or participated with any power whatever.

The House affirmed

The measures directed towards colored persons brought within the territory of this state, are simply part of the general system of domestic police, defensible as such, and absolutely necessary to ensure the safety of the citizens.

In other words, John Quincy Adams could best repose Wirt’s opinion and the British protests in some area perhaps well-suited to the cultivation of mushrooms but otherwise ill-disposed to agriculture. The state acted accordingly, continuing to imprison sailors. Washington and London could protest all they like, but South Carolina did as it willed. London could not perhaps force the issue short of a war. Washington chose not to and let the nullification stand.

Here, for the first time, the state grappled with the issues of the later Nullification Crisis. South Carolina cited the same reserved power of the states to nullify a treaty in the name of internal security that it would later call upon to nullify a federal law. In both cases, its constitutional thinkers discovered this power to save slavery. Victory in the first instance spurred South Carolina onward. If nullification worked once, it could work again.