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.


Sumner’s Rhetoric and Response

Charles Sumner (Free Soil-MA)

Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18; full speech

Gentle Readers, with the Freedom National speech blogged through it would do to take a higher-level look at Sumner’s rhetoric. Nothing he argued came originally from him. By his own admission, Sumner more remembered than innovated his doctrines. His mind ran more to carrying notions to their logical ends than to create them anew. But Sumner could package the ideas of others together in an effective form, a valuable skill in its own right. He chose to argue from the rhetorical right, laying out a narrative of decline from the founders’ abolitionism to the ascendancy of proslavery radicalism in the Compromise of 1850. In other words, Sumner argued as a conservative.

The Senator’s natural inclinations may have put him in that position anyway, as his biographer argues, but we should consider the situation he faced. His opponents painted themselves as conservatives too. They fought for the Union of their fathers, against the abstractions of extremists who would rend the nation. They cast themselves as sensible men, dedicated to the established way of doing things and willing to sacrifice their personal convictions to the greater good. Sumner turned their framing on its head and called them out. They, not he, had gone Jacobinical. They created new horrors in the Fugitive Slave Act. Disinterested stewards of the national faith would do no such thing.

Daniel Webster

Sumner’s senatorial colleagues wouldn’t have missed the point. He challenged them on their own ground, rhetorically and physically, in front of a packed gallery. Members of the House gathered on the Senate floor to hear him. Daniel Webster came to see his replacement as Massachusetts’ spokesman and the Secretary of State endured an hour, pacing the chamber, before he left. Sumner had only gotten a quarter of the way through condemning him by then. According to Sumner’s biographer, the almost four hours of oratory reduced many of the women in the gallery and an unnamed senator to tears. Rhetorical tastes have changed greatly since 1852, but even with the remove of years Sumner reads powerfully when he comes to his summations.

Sumner closed with an “Oriental piety”:

Beware of the groans of the wounded souls. Oppress not to the utmost a single heart; for a solitary sigh has the power to overset the whole world.

He took his seat to “unbounded” applause that promptly showed its bounds. A senator from Alabama rose and argued no one should answer

The ravings of a maniac may be dangerous, but the barking of a puppy never did any harm.

A North Carolinian griped at Sumner’s elaborate rhetoric and complained about the untranslated Latin quotations. No one in the Senate could probably follow those, he thought. Stephen Douglas damned Sumner for attacking the Constitution. John B. Weller (D-CA) thought he wanted to incite riots in Northern cities. He found praise in the Senate only from John Hale and Salmon Chase. When the motion that occasioned the speech came to a vote, they and Ohio’s Ben wade joined Sumner in recommending repeal. Four hours of oratory got Sumner only four votes, including his own.

God and Honor: Sumner’s Freedom National Speech, Part 19

Charles Sumner (Free Soil-MA)

Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18; full speech

We left Charles Sumner offering a solution to the fugitive slave problem: let the states do whatever. That included rendering over no slaves at all as well as granting them all the due process that a white man would expect, up to and including a jury trial. Few Northern juries would eagerly send someone back into slavery, given the general popularity of efforts to aid fugitives and extreme unpopularity of the Fugitive Slave Act. Even people who otherwise found antislavery politics tedious could struggle with sending a person standing before them back to whipping and unrequited toil.

That all brought Charles Sumner to his actual close, seventy-five pages in. There, as with the rest of his long conclusion, he returned to a theme he had developed before:

The Slave Act violates the Constitution and shocks the Public Conscience. With modesty and yet with firmness let me add, sir, it offends against the Divine Law. No such enactment can be entitled to support. As the throne of God is above every earthly throne, so are his laws and statutes above all the laws and statutes of man. To question these, is to question God himself.

Senator William H. Seward (Whig-NY)

The faithful always find the Almighty on their side, whichever side they have. Sumner would have the Senate know that those in the chamber who voted for the Fugitive Slave Act sinned as much against revealed religion as civic. He appealed, as William Seward had a few years before, to a Higher Law. Men could err, but the divine never did. Fallen men could not presume their laws comported with those of God, or they would “presumptuously and impiously” put themselves on his level. But where one man could sin, another might not. Thus men must question one another. No one would dispute that if Congress ordered a murder, but instead one would take recourse to one’s own conscience.

Much of this gospel of self-doubt and conscience must have fallen on death ears. Since the Revolution, perhaps before, the North’s culture had developed in ways that stressed individual judgment and conscience in ways different from that of the South. In the slave states, the old ways of honor that put reputation and community regard above all remained strong. A Southern man mastered others, whether black, women, or children. He had license to conduct himself largely as he willed, so long as he remained within the community’s broad guidelines. If he thought them wrong, he must comply anyway lest he suffer disgrace. A Southern man might take an interest in religion, and should make proper pious demonstrations, but no odium attached to him if he took his wife to church on Sunday and declined to attend himself. He may have had as much conscience as anyone else, but making it his sole guiding light would have flown in the face of his upbringing. By contrast, men like Sumner felt somewhat more at liberty to dissent from their community and chart their own courses. They felt more controlled by guilt than shame, more disciplined by themselves than others.

One can take this comparison too far. Northerners once acted much as Southerners did and they had not shaken the old ways entirely. Northern politicians did not shy away from the language of honor and disgrace. Nor did they all adopt a pious, inward-looking attitude. Likewise Southerners could find their customary ways deficient and adopt ideas that seemed more fitting to modern conceptions of Christianity and good conduct. Honor and conscience may occupy different ends of a spectrum, but do share one.


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.

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.