A Solution: Sumner’s Freedom National Speech, Part 18

Charles Sumner (Free Soil-MA)

Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17; full speech

Charles Sumner completed review of his long speech on the theme of Freedom National and the perfidy of the Fugitive Slave Act with George Washington. Even that bold man, president at the time, bowed to popular revulsion and let Ona Judge have her freedom. If Washington could do so, then so could the men of the United States Senate repeal their odious law and set the nation back on its right course. This all posed a reasonable question. As Sumner did not preach the immediate end of slavery, what did he expect to happen with Fugitive Slaves? The Constitution obligated some system of rendition.

Sumner had an answer. He argued that the Fugitive Slave Clause did not grant Congress any power at all. Rather, it fell to the individual states to manage things by compacts amongst themselves. In this respect, the Constitution worked like a treaty between nations. He cited European precedents going back to the medieval era to prove that extradition of fugitives of any sort depended on the will of the polity that held them, not the one that pursued them. Two parts of Charles V’s empire could deny extradition. Why couldn’t two parts of the American empire?

To bring things back across the ocean, Sumner noted that the Fugitive Slave Clause came originally from the Northwest Ordinance. That document aspired to nothing more than an interstate compact and Sumner claimed for it inspiration from an arrangement that Massachusetts had with other New England colonies way back in the seventeenth century. Thus:

As a compact, its execution depends absolutely upon the States, without any intervention of the Nation. Each State, in the exercise of its own judgment, will determine for itself the precise extent of the obligations assumed.

Since freedom hung in the balance, Sumner insisted those states must apply themselves to the question with great deliberation. They must regard the accused as persons and grant to them all the personal liberties held under the Constitution. The presumption must run, from the common law and from the will of the founders, to freedom. If someone wanted to take a person from a free state, the onus fell upon them to prove they had a right to do so. In the absence of language in the Constitution setting the form for such a determination, states had every right to insist upon a full and fair trial. No one could object, because the state deciding on the extradition had final say.

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Reviewing the field: Sumner’s Freedom National Speech, Part 17

Charles Sumner (Free Soil-MA)

Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16; full speech

Gentle Readers, we have come near to the end. Sumner begins the next section of his speech with a “review of the field over which we have passed.” His audience didn’t need it or, probably, want that review. The classical model Sumner adhered rigorously to demanded such things. But he had gone on for a long time and covered a great deal of ground. Even people reading the pamphlet or bloggers going through the whole thing piece by piece might have forgotten some points in the torrent of words.

Sumner opened by declaring that the discussion of slavery, so eagerly closed forever in the wake of the Compromise of 1850, “is tyrannical, absurd, and impotent.” The genie could not go back in the bottle and white American men demanded by their First Amendment rights to discuss any matter they liked. Even if they had no such right, slavery could exist only through legislative enactment. Since one had to pass a law to make slaves, one must debate slavery whilst debating any such law. As the Constitution presumed freedom, a special burden of justification must fall on those who would deny it.

Sumner assembled the greatest patriotic authorities to his cause, calling George Washington “an Abolitionist” surrounded by others. Churches, colleges, literature, and poetry all stood united with him against slavery. The nation’s “best voices” did the same. Nowhere in his era did the national territory hold a single slave. This history doesn’t comport well with how we understand the past, and Sumner knew then that he took some liberties. He praised the Washington who freed his slaves at death and let Ona Judge keep her freedom, not the Washington who enslaved her and pursued her. He may genuinely not have known that the Northwest Territory held then had a number of slaves and and a noisome slaveholding minority keen to keep their human property.

Then Massachusetts’ junior Senator had to explain away the Fugitive Slave Clause, which he rightly called a last minute addition. The framers didn’t think that one through and didn’t race to enact legislation to support it once they established the new government. Nor did they hang the Union on its fate. Those days came later, when the new Fugitive Slave Act arrived in 1850. Sumner damned it for usurping powers not granted to Congress, a trampling on the rights of states, and an egregious affront to civil rights. The law included no provisions for a jury trial, so slave catchers could take anyone they like. That unfortunate would lack a right to legal representation or to speak in their own defense. Their fate would come down to the ruling of a commissioner, not even a judge.

The hallowed founders warred against the greatest empire since Rome for such offenses, but even the Stamp Act did not dare to enslave those who ran afoul of it. The Fugitive Slave Act was and could only be worse, as freedom is dearer than mere property. Finally, the people at the North could see all that plain as day and refused to abide by such an imposition. In the face of such defiance to his pursuit of Ona Judge, even bold Washington had submitted.

The Uneasy, the Cultists, and the Heroes: Sumner’s Freedom National Speech, Part 16

Charles Sumner (Free Soil-MA)

Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15; full speech

Charles Sumner went from citing George Washington’s submission to the public will in letting Ona Judge have her freedom right back to present circumstances in the North. Nothing had changed since Portsmouth refused the first president. “Everywhere” slave catchers went, they roused the community against the spectacle of men dragged from their jobs, wives, and children. Horrors attended:

At Buffalo the fugitive was cruelly knocked by a log of wood against a red-hot stove, and his mock trial commenced while the blood still oozed from his wounded head. At Syracuse, he was rescued by a sudden mob; so also at Boston. At Harrisburg the fugitive was shot; at Christiana the Slave-Hunter was shot.

Washington feared “uneasy” people. Those who followed his infamous example in 1852 swelled “with ill-suppressed indignation.” Every act of enforcement made the Fugitive Slave Act “more revolting.” The law tainted those who did its work, like pitch, and in the deed they lost “the better part of man.” Every man at the North felt the same, seeing “clemency, grace, and justice” passing by. The spectacle harrowed “the souls of good men” and drew out their tears. The weeping, outraged North would not suffer the law.

Sumner admitted that some Yankees defied good sense and made themselves into “cultists” for it: the “mercantile interest”. In England they refused to suppress the Barbary pirates who enslaved good Englishmen. They fought the abolition of the slave trade there. In America, they carved permission for it into the Constitution “by a sordid compromise”. Now they would hunt slaves for other men. Yet for their monumental perfidy, they accounted for only a tiny minority. In the breast of every good Northern man, “the great heard of the people” beat for the enslaved, aided the fugitive, and cheered their escape.

Literature, songs, and poetry all stood for freedom, whatever the South’s literary lights might think. In 1852, the literature had a new salience. “A woman, inspired by Christian genius,” entered the controversy “like another Joan of Arc.” Harriet Beecher Stowe had already sold near to a hundred thousand copies of Uncle Tom’s Cabin. That spoke to her ability, but also to the willingness of so many to hear her message.

The slaves needed no such prophets, but had already made themselves into heroes that dwarfed those of Antiquity. The names of those who stole themselves “would be treasured in the annals of their race.” Their testimony showed the wrongs they suffered to a waiting world. Posterity would not forget, “but soon lend them her avenging pen.” Sumner got the last part right in the end, but it took decades for white historians to accept that the slaves might possess some ability to speak to their own condition.

 

 

Ona Judge and George Washington: Sumner’s Freedom National Speech, Part 15

Small programming note, Gentle Readers: Over to the side of this post, and probably a bit down, you’ll find a Goodreads panel tracking my present reading. I almost only read history these days and have fallen out of giving occasional updates about it. Michael Holt’s Whig book has sat on top of my currently reading, untouched, since November but the display should otherwise match reality. Also you’ll discover my habit of doing things on the internet under assumed names. I hearken back to the carrier anomalocaris days when no one used their real name online.

Charles Sumner (Free Soil-MA)

Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14; full speech

We left Charles Sumner denouncing the Fugitive Slave Act as worse than the Stamp Act. He told the Senate that popular will would no more sustain this infamous law than it had the old one. The men of the North would not sit idle in the face of such tyranny, but rise up and make it a dead letter. They had done so before, as any Massachusetts man knew. If his audience might protest that the North rose for its own freedoms, not those of slaves, Sumner had another example ready: George Washington.

As longterm readers may remember, one of Martha Washington’s slaves stole herself from Philadelphia. Ona Judge made it all the way to Portsmouth, New Hampshire. George wanted Ona back and wrote a letter to the Collector of the port, Joseph Whipple, asking him to get her back. It appears that Whipple wrote to Washington first with the news that Judge had arrived, but I’ve never seen that letter. It may not survive. Sumner had Washington’s answer to it, which he claimed “has never before seen the light.”

Washington opens with a testy answer to Judge’s proposed compromise for return:

I regret that the attempt you made to restore the girl (Oney Judge as she called herself while with us, and who, without the least provocation absconded from her Mistress) should have been attended with so little success. To enter into such a compromise, as she has suggested to you, is totally inadmissible, for reasons that must strike at first view: for however well disposed I might be to a gradual abolition, or even to an entire emancipation of that description of People (if the latter was in itself practicable at this Moment) it would neither be politic or just, to reward unfaithfulness with a premature preference; and thereby discontent, beforehand, the minds of all her fellow Servants; who by their steady adherence, are far more deserving than herself, of favor.

The Father of the Country liked the idea of gradual emancipation, but didn’t see fit to reward a slave with any promises of it. A runaway deserved punishment, not reward. But Sumner drew out a different quote. After advising Whipple to make another go of it, Washington asked that he not cause a scandal in Portsmouth:

I do not mean however, by this request, that such violent measures should be used as would excite a mob or riot, which might be the case if she has adherents, or even uneasy sensations in the minds of well disposed Citizens. rather than either of these shd happen, I would forego her services altogether; and the example also, which is of infinite more importance. The less is said before hand, and the more celerity is used in the act of Shipping her, when an opportunity presents, the better chance Mrs Washington (who is desirous of receiving her again) will have to be gratified. [Sumner’s emphasis.]

George Washington

Whipple wrote back, indicating that he understood Washington’s concerns. He ought to do nothing that would arouse Portsmouth against him, or even create those uneasy sensations. In other words, Whipple should act quietly and avoid a spectacle that might bring failure anyway. Whipple told Washington that he had no way to know just what would happen even then; he would have to feel things out as he went. The lack of a ship ready to sail for Virginia, Judge’s pending marriage to a free man, and popular sentiment all pushed against any rendition. Whipple gave it up and Ona Judge enjoyed her freedom in New Hampshire into the 1840s.

Washington gave up the quest too. He wanted Judge back, but even at the height of his powers he bowed to the popular will.  Surely no American could turn from Washington’s example, or neglect the startling fact that Americans in his time refused to do his bidding and return Ona Judge to slavery in Virginia. Even that greatest of men might err, and Sumner made it clear that Washington had, but the “Washington on earth” thought one thing and the “Washington in Heaven” another. “His death is above his life,” Sumner averred, because in his will the first President freed his slaves.

Worse than the Stamp Act: Sumner’s Freedom National Speech, Part 14

Charles Sumner (Free Soil-MA)

Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13; full speech

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.

Andrew Butler (D-SC)

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.

The Fugitive Slave Stamp Act: Sumner’s Freedom National Speech, Part 13

Charles Sumner (Free Soil-MA)

Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12; full speech

Charles Sumner hammered on the right to trial by jury at length, which let him with just under twenty pages to go. Some hours into his oration now, he must have caught the mood of the room (“I am admonished to hasten on.”) as he demurred to say more on the jury question despite having “much more I might say”. He then excoriated the Stamp Act, which Sumner deemed offensive to the British Constitution on the grounds of parliamentary usurpation of powers and second…for denying trial by jury. Then Sumner held to his word and focused on popular resistance instead of harping further on the theme.

The public feeling was variously expressed. At Boston, on the arrival of the stamps, the shops were closed, the bells of the churches tolled, and the flags of the ships hung at half-mast. At Portsmouth, in New Hampshire, the bells were tolled, and notice given to the friends of Liberty to hold themselves in readiness to attend her funeral. […] Bodies of patriots were organized everywhere under the name of “Sons of Liberty.”

Sumner obviously had other patriot bodies in mind in referencing the Sons of Liberty. Much of the white portion of the underground railroad operated in semi-public, even publishing reports with the number of people they helped and money raised. No one would have missed the allusion. How far the mighty had fallen, from when Virginia led the fight for freedom:

The unconstitutional Stamp Act has been welcomed in the Colonies by the Tories of that day precisely as the unconstitutional Slave Act has been welcomed by large and imperious numbers.

Then Sumner chronicled the eminent men of the day who favored the Stamp Act. Yet the aroused ire of the community would not yield before those luminaries then any more than it would yield now. So long as a free community existed where white men could debate their views, Sumner believed injustice could not long endure. Massachusetts had such a community. The South did not, but rather drove anyone who preached antislavery from its bounds except in the most marginal slave states. By Southerners’ own admission, their slavery could not endure a free and forthright exchange of ideas. Dissent among whites may spread; dissent among slaves themselves surely would and an insurrection could only ensue when those unfortunates discovered, somehow, that they disliked the regime that stole their lives, destroyed their families, beat and raped them.

If public indignation could make the Stamp Act a dead letter, then it could do the same for the Fugitive Slave Act. The men of the North, the compromising Daniel Webster sort aside, would no more submit than Americans would bow to Parliament. Quoting Franklin’s testimony to that body on the earlier subject, Sumner spoke for the people of his North:

“We are told America is obstinate-America is almost in open rebellion. Sir, I rejoice that America has resisted. Three millions of people so dead to all the feelings of liberty, as voluntarily to submit to be slaves, would have been fit instruments to make slaves of all the rest. The Americans have been wronged; they have been driven to madness. I will beg leave to tell the House in a few words that is really my opinion. It is that the Stamp Act should be repealed, absolutely, totally, and immediately.” It was repealed.

 

“Not susceptible of pecuniary valuation” Sumner’s Freedom National Speech, Part 12

Charles Sumner (Free Soil-MA)

Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11; full speech

Charles Sumner continued his disquisition on the constitutional faults of the Fugitive Slave Act with a look into court precedent. This sort of argument clearly put Sumner in his element and he goes on with it for some time, largely repeating things he said previously about the denial of rights to the alleged fugitive slave. He had the temerity to tell a Senate full of lawyers what a lawsuit constituted, complete with a citation. Then he ran down court precedent explain what the Constitution meant by common law. All of it pointed to a right to jury trial for such people, which the law annulled. In the course of all that he came to one interesting point.

The American right to jury trial comes from in part from the Seventh Amendment:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Sumner had found a case, Lee v. Lee, which hinged on

whether the “value in controversy” was “one thousand dollars and upwards,” it was objected that the appellants, who were petitioners for Freedom, were not of the value of one thousand dollars.

Though Sumner doesn’t go into details, from implication the opposition must have argued that the people didn’t amount to twenty dollars and so no jury trial should ensue. The Court would hear none of that dickering over slave valuation, but instead closed the door on the question:

The matter in dispute is the Freedom of the petitioners. This is not susceptible of pecuniary valuation.

Thus any and every freedom suit or fugitive rendition must involve a controversy over more than twenty dollars. An accused fugitive slave should have a real day in court, in the jurisdiction where slave catchers seized them. Then the Northern men of the jury pool could decide whether or not to return a person they saw with their own eyes and heard defended deserved to go back to slavery.

Sumner considered this a point of common as well as constitutional law, digging all the way back to the laws on serfs who fled service to show that even in medieval England such people deserved and got a jury trial. Calling serfdom “a barbarous institution”, the Senator still noted that those afflicted had the same right as in the American Constitution. Tradition more ancient than the Thirteen Colonies demanded it. He then connected the dots through subsequent commentators on the law, all specifying writs and proceedings that together built up the right to trial by jury “even in the early, unrefined, and barbarous days of the common law.” The framers, even the South Carolinians, knew all of that. Some had studied law in England, just as Charles Sumner did. As competent, learned men, they understood this all. Only their children and grandchildren had forgotten that freedom held an infinite value and they could not so freely legislate it away.

“Your Constitution has forbid it”: Sumner’s Freedom National Speech, Part 11

Charles Sumner (Free Soil-MA)

Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10; full speech

We left Charles Sumner explaining how the first fugitive slave law, from 1793, didn’t complicate his argument that the framers wanted the national government to have nothing to do with slave catching. He argued that they made a mistake; everyone knew that just as everyone knew they erred with the national bank. Anyway, strict construction did not permit the nation to assume a power for slave renditions on the grounds that the Constitution had no such explicit grant of power to Congress. Members of the Democratic end of Sumner’s coalition back in Massachusetts must have nodded along. To give them more thrills, and probably nauseate more than a few of his ex-Whig comrades, Sumner then engaged in a page-long defense of state’s rights to underline his point. That included words which, a few years later, took on a rather different cast over the fate of Kansas:

Non-intervention is the rule prescribed to the Nation. [For slavery.]

Stephen Douglas, Archibald Dixon, and company would tout non-intervention as the magic bullet for ending slavery controversy when they repealed the Missouri Compromise. The nation had interfered to ban slavery and they would restore it to its proper place as a local question. Sumner would promptly switch principles, just as every principled state’s rights man does in the same situation.

Continuing on the theme, Sumner declared

if the slaveholder has a right to be secure at home in the enjoyment of Slavery, so also has the freeman of the North-and every person there is presumed to be a freeman-an equal right to be secure at home in the enjoyment of Freedom.

State’s rights would work both ways, until about January of 1854. Sumner reminded the Senate that the free states might take a lesson from proslavery impositions and, in some future day, apply the powers that Southern men gave to Congress for their own ends. In Reconstruction, just that would come to pass.

The Senator from Massachusetts then dissected the Fugitive Slave Act of 1850 in more detail, damning it for the denial of a jury trial to the accused. According to the Constitution, even if the government had the power to act as proslavery men wished, accused fugitives had a right to a jury’s verdict. The clause applied to people “held to labor” and only the people who owned their labor could recover them. One couldn’t just assert that, but rather had to show it to some legal standard. The new law discarded all of that in favor of a simple claim made to a commissioner, with no jury and no right of defense. By acting as a trial in all but name, it bypassed ancient and dear rights:

And these proceedings determine on the one side the question of property, and on the other the sacred question of Personal Liberty in its most transcendent form; not merely Liberty for a day or a year, but for life, and the Liberty of generations that shall come after, so long as Slavery endures.

This made for wild stuff, so wild that Sumner found a South Carolinian senator who objected back when the matter came before the Senate in 1818:

This would give the Judge the sole power of deciding the right of property the master claims in his slaves, instead of trying that right by a jury, as prescribed by the Constitution. He would be judge of matters of law and matters of fact; clothed with all the powers of a court. Such a principle is unknown in your system or jurisprudence. Your Constitution has forbid it.

When even a South Carolinian thinks one has gone too far in defense of slavery, one must take notice.

Charles Sumner, Democrat: Sumner’s Freedom National Speech, Part 10

Charles Sumner (Free Soil-MA)

Parts 1, 2, 3, 4, 5, 6, 7, 8, 9; full speech

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.

Charles Sumner and Freedom of Religion: Sumner’s Freedom National Speech, Part 9

Charles Sumner (Free Soil-MA)

Parts 1, 2, 3, 4, 5, 6, 7, 8; full speech

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.