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.

 

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Trouble for Sumner in Massachusetts

Charles Sumner (Free Soil-MA)

The session of Congress ended shortly after Sumner finished his Freedom National speech. He took his congratulations and condemnations from the Senate and eagerly passed the former on to correspondents back home, then set out in his letters’ wake. The conservative Bay State papers refused to print the oration, but Massachusetts read it in papers friendly to the Free Soil party and antislavery cause, as well as in pamphlets. They burned through five editions in short order. Sumner found himself restored to the good graces of his party, to the point that they staged a rally outside his house.

That didn’t last. Sumner endured a long session in Washington and wanted a vacation. He expected to dine with friends, going to off to Rhode Island and up into Canada, and generally enjoying the easy life for three months. The Free Soilers had elections coming up and they expected their hero to wear smooth as many stumps as Massachusetts could turn up for him. Supporters griped that he came home and vanished, doing nothing to help the party aside from a brief convention appearance. When the elections returned the Whigs to control of the State, Sumner took a share of the blame for his silence.

Sumner would endure the same pattern for years. He fought hard in Washington, or as hard as he felt he could, then returned to a Massachusetts that expected more of him on the home front. The more he did in the Senate, the more he obviously could do and so the more he should do for the Bay State. All through this, he believed that his speeches did the job just fine and his party should not ask more of him. They elected an orator, not a machine politician.

Henry Wilson (Free Soil-MA)

The party thought otherwise, and probably couldn’t do less. Sumner’s position as a leader in the creaky coalition could only draw distrust from many quarters. Whigs hated him as a traitor and took his antislavery speeches as the venal acts of an unregenerate office-seeker. Anti-coalition Democrats thought much the same, but also took him as an abolition fanatic. The men more properly construed abolition fanatics, for all we admire them, disliked Sumner for his failure to meet their standards of purity. Furthermore, Sumner’s personal friends included anti-coalition Whigs who kept trying to oust Henry Wilson so the pro-coalition element around him could never quite trust the Senator either.

The next Senate session brought little to relieve Sumner of the problem. He fought the acquisition of Cuba, but those battles took place in closed sessions. Democrats and Whigs agreed that Sumner belonged to no party, so he deserved no committee postings where he could at least look busy. At home the abolitionists decided that Sumner’s embrace of the Constitution made him toxic. The Massachusetts legislature introduced resolutions to protest his exclusion from committee work, but the coalition dropped them because he hadn’t done enough to earn the party’s defense.

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.

 

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.

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.

Potterizing Andrew Jackson

Harriet Tubman

Harriet Tubman

In The Half Has Never Been Told, Ed Baptist tells the story of Robert Potter. Born poor, in a declining section of North Carolina, Potter had few prospects. In addition to his modest birth he had the poor fortune of birth in a time when his white skin and male sex did not quite mean everything yet. The law disenfranchised most whites. The enslaver elite supported infrastructure projects designed to carry their tobacco to market, which they expected everyone to pay for. In the capital-starved antebellum South, their banks declined to extend credit to any save their own set. Their university catered only to their own sons.

With these obstacles before him, we might expect Robert Potter to vanish into the anonymous multitudes. He got lucky instead, finding a patron in the local elite who favored him with an education and arranged for him to join the Navy as a midshipman. Potter’s benefactor might have expected his man to stay bought. He might have done so, but when Potter sought office he found the old money oligarchs aligned against him. They ensured his defeat. He challenged the other man, Jesse Bynum, to a duel. Bynum refused. One dueled with peers, not inferiors. In a fit of bootstrapping straight out of American myth, “Potter ambushed Bynum and cracked his skull with a stick.”

In Potter’s and Bynum’s world, to treat a white man like an inferior came quite close to treating him like a slave:

Enslaved men were not allowed to defend their pride, their manhood, or anything else. They had to endure the penetrating of their skin, their lives, their families. Therefore the best way to insult a white man was to treat him like a black man, as if he could not strike back, and the best way to disprove that was to strike back.

Fully aware of all that, the courts indulged well-off men who felt the need to prove their manhood. They did not often extend the same tolerance to those less well off. Potter faced no legal challenge, but the threat of one joined the other indignities he suffered and put him thoroughly at odds with the oligarchy. Potter won his next election, a rematch with Bynum, and proposed a raft of measures to challenge planter dominance. His bills went nowhere, but they earned him the voters’ esteem. They sent him to Congress in 1828 and reelected him in 1832.

Between sessions of Congress, Potter came home and got the idea that his wife had cheated on him with a minister and a teenage neighbor. Polite society deemed both men his superiors. They had, at least in his mind, wronged Potter. He must avenge his honor or be degraded. Potter might have tried a duel, but he fixed on a new innovation:

On August 28, 1831, Potter kidnapped both of those men. he took them out into the woods. Then he castrated them. Then he released them.

Within a day, Potter had been captured. he was then locked in a cell at Oxford, the county seat. But from behind bars, as he awaited trial, Potter penned a defense of his actions. His “Appeal” was, he said, an effort -“as a man-as a member of society”- to explain to explain himself “to the world,” but especially “to you, my constituents.” He justified his castration of two white men, honored members of their society, as self-defense. They had tried to unman him first, “stab[bing] me most vitally-they had hurt me beyond all cure-they had polluted the very sanctuary of my soul.” Their cuckholding left him “the most degraded man” in Granville, and he now “felt that I could no longer maintain my place among men.” He had been subjected to the same humiliation that enslaved men had to endure. The only possible solution was to wipe off “the disgrace that had been put upon me, with the blood of those who had fixed it there.” Like a proper gentleman who shot someone in a duel to erase an insult, Potter believed that only an act of greater violation than what had been committed against him would erase the unmanning mark.

Potter spent two years in jail, during which time the legislature gave his wife a divorce and let her change the name of their children. He got off relatively easy because North Carolina had no law on the books to punish castration. The legislators passed one proscribing death for anybody who chose to follow Potter’s example and “Potterize” their enemies.

Potter’s sensational case speaks to the violent, honor-obsessed character of the Antebellum South. After his release, poor white men who understood Potter as one of their own put him right back into the state legislature. His plight reflected their own indignities. His solution spoke to their oft-frustrated search for redress. As white men, they deserved better; they demanded it. A cotton planter of the Tennessee elite built his political career on casting himself as their voice. When he took his oath, in front of an unprecedented crowd, Andrews Jackson bowed to the throng who had themselves bared their heads in deference.

Jackson didn’t invent popular politics. The owner of more than a hundred slaves hardly made for a common man, but he played the part. In him, poor white men saw their dreams fulfilled. In his many duels, they saw a nineteenth century superhero fighting as they did, for them. He had already “made Jefferson’s paper empire for white liberty into fact.” The genocidal Indian fighter, victor of New Orleans, epitomized their kind of America. In office, he would sweep aside Indian nations and open still more vast sections of the Southwest to slavery. Then he threw down with the crustiest of all oligarchs: South Carolina enslavers.

Jackson took the nullifiers’ action as a direct challenge to the power of a national majority. So did a Tennessee constituent, who said, delighting in Old Hickory’s humiliation of the South Carolina planter elite, “The old chief could rally force enough…to stand on Saluda Mountain [in northwestern South Carolina] and piss enough to float the whole nullifying crew into the Atlantic Ocean.” The way he saw it, Carolina’s planters blustered about mobilizing the militia and blocking federal tariff enforcement until the collected penises of Jackson’s supporters, like himself, cowed them, and they backed down.

You could drown in the testosterone, among other substances. A certain kind of man found in Andrew Jackson the apotheosis of America: bloody, bold, resolute, ready to kick every Indian ass, whip every enslaved back, kill all the Britishers, and then come home to passionately mourn his sainted wife. He might as well have hailed from Krypton as upcountry South Carolina. The white man’s white man might have hated banks and paper money. He might have broken the law to break the Bank of the United States, among his lesser sins, but we put people on money to celebrate them. As the hallowed founder of a Democratic party deeply wedded to white supremacy and singularly powerful in the South, where it rarely had more than notional competition, it comes as no surprise that when the Democracy instituted the Federal Reserve they put Jackson’s picture on its ten dollar note. He moved to the twenty, replacing Grover Cleveland, in 1928.

We put Jackson on our money because we admired him, the same reason Washington, Jefferson, and Lincoln appear in our wallets. Everyone understands that, for all we might sometimes pretend otherwise; no American currency has ever depicted Benedict Arnold. We kept him there because we kept on admiring him. Now we have tentatively decided to do otherwise, pushing Jackson to the back of the bill and putting Harriet Tubman on the front. Jackson might very well have fought a duel with someone who told him his face would go on paper money, but he surely would have if told that an enslaved woman would replace him. Displacement itself would have bruised his always-tender pride. Displacement by a woman? A black woman? A slave? Old Hickory could hardly imagine a greater indignity. If the dead could truly rise from their graves in outrage, Jackson’s rattling skeleton would have put on an appearance by now. We will Potterize him.

Tubman during the Civil War

Tubman during the Civil War

That in itself deserves some celebration. After so many decades, we have come kicking and screaming to a point where this may actually happen in a decade and a half. General Jackson will have his demotion, but Tubman’s promotion deserves its own consideration. If we wish to replace Jackson with an American similarly endowed with what the more sophisticated members of the historical academy call badassery, she makes for a great choice. Tubman didn’t just steal herself to freedom, itself a harrowing, dangerous act. She went back and rescued others, freeing scores in an eleven year career. She went back armed, for her own defense but also to straighten out fugitives who had second thoughts. A single enslaved person with cold feet might expose the whole operation and put everyone back in bondage, or a shallow grave. Thus, Tubman reasoned, “Dead niggers tell no tales.” Not content with such exploits in peacetime, during the Civil War Tubman graduated from nurse and cook to army scout. One of her expeditions freed north of seven hundred enslaved people.

We have in Tubman’s life daring exploits in freedom’s name much as we might imagine in Jackson’s. If he deserves recognition for such a record, then she does as well. The question we face in these matters, whether or not we care to admit it, is not which historical figure makes for a better superhero. Rather we must ask ourselves which vision of Truth, Justice, and the American we prefer. Past generations have come down firmly on Jackson’s side, nailing their colors to the fruits of genocide and an empire for slavery.

I don’t think we’ve quit all that, or even come near to it, just yet; a new face on money will not change minds. It can only, at best, tell us that minds have already changed. Just as many of us have not found Jackson’s portrait an eloquent testimony to his character, others will find nothing to admire in Tubman’s. But it takes more than a few disaffected people to make such a change. If we have not gone so far as we would like, and will inevitably declare final victory again as we always do, then we have at least dragged ourselves some small step forward. In 2016, many Americans still find Andrew Jackson’s vision of freedom praiseworthy and want to hide Harriet Tubman’s on a new denomination that we will never print or on an obscure one used only as a novelty, but not so many as once did. We have come this far.

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

Samuel Newitt Wood

Samuel Newitt Wood

Samuel Curtis laid out a thoroughgoing definition of treason for his Boston grand jury back on October 15, 1851. You had to conspire to resist the laws of the United States, or their enforcement. You must use or threaten force. You didn’t have to plan far ahead or come in full military panoply, but you did have to intend to oppose execution of at least one law in all cases rather than just in a particular instance. Through all of this, Curtis has largely written in the context of the act itself and immediate perpetrators, but he did specify that treason came out of conspiracies and combinations. How far could those reach, legally speaking?

It should be known also, that treason may be committed by those not personally present at the immediate scene of violence. If a body of men be actually assembled to effect by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered guilty of treason.

That spelled bad news for vigilance committees out to aid fugitive slaves in their escape. If we take the laws of Kansas as those of the United States, an arguable proposition but probably close enough for proslavery Kansans, then it also implicated the entire Kansas Legion. They had a military band aimed at resisting the territory’s laws, which they hardly needed unless they foresaw the use of force to resist. The Legion’s constitution specified that once a group reached a thirty men, it must have a military character. Jacob Branson, his rescuer Samuel Wood, and likely everybody of consequence in the free state movement had membership in such a combination.

The sudden burst of warrants and eager exploitation of the crisis to seize the free state leaders in Lawrence still looks like an opportunistic fishing expedition in light of this, but one with at least a plausible legal leg to stand on. Legal niceties didn’t bother proslavery Kansans and their Missourian allies all that much, but they could honestly say they observed some of the forms.

Curtis spelled it out in words that anticipate free state political activity almost word for word:

Influential persons cannot form associations to resist the law by violence, excite the passions of ignorant and unreflecting, or desperate men, incite them to action, supply them with weapons, and then retire and await in safety the result of the violence which they themselves have caused. To permit this, would not only be inconsistent with sound policy, but with a due regard to the just responsibilities of men. The law does not permit it. They who have the wickedness to plan and incite and aid, and who perform any part however minute, are justly deemed guilty

Samuel Jones

Samuel Jones

Set aside the fact that Curtis had antislavery efforts in mind when he wrote all of this and I don’t see a great deal one could argue with. We might not reach for treason so quickly today as Curtis did, preferring some other offense, but his reasoning on each point appears sound and practical. His definitions don’t perfectly fit events in Kansas, but they come close. Given the real fear of slave revolt and already-extant inattention to the finer points of law, I come away from this with the strong sense that when most proslavery men said treason, they meant it. It served their purposes to make the claim, and some of the lawyers probably knew better, but it all fits together too well to read the accusations as entirely cynical.

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

Samuel Newitt Wood

Samuel Newitt Wood

Yesterday we looked at the first prong of Samuel Curtis’ test for treason as it related to fugitive slave rescues in his own Boston and, later on, to the events precipitating the Wakarusa War in Kansas. Curtis specified that one could levy war against the United States by any organized attempt to thwart the execution or enforcement of its laws by force. The fugitive rescuers surely did that. The free state movement, as of the end of 1855, had done the same if one counts the laws of Kansas as laws of the United States. If one does not, then they remained innocent. The Kansas-Nebraska Act, as customary for laws organizing territories, granted lawmaking authority to the territorial government with the proviso that Congress retained the power to review and annul such laws. Whether that makes them federal or not probably depends on where one stands. In the strictest reading, they don’t qualify. Functionally, however, they might come close enough to make little difference.

What of the nature of combinations to resist the laws, then? While the free state movement had a long paper trail, when Samuel Wood roused some men and came to Jacob Branson’s rescue he appears to have acted on his own authority. He led a militia company, but he made no effort to secure permission from the free state leadership to mount the rescue. Did relatively spontaneous acts count as conspiracy?

Curtis thought so:

Such a conspiracy may be formed before the individuals assemble to act, and they may come together to act pursuant to it; or it may be formed when they have assembled, and immediately before they act. The time is not essential. All that is necessary is, that being assembled, they should act in forcible opposition to a law few the United States, pursuant to a common design to prevent the execution of that law, in any case within their reach.

You didn’t have to plan ahead; you could treason on short notice. Curtis doubtless had in mind heat of the moment efforts to free slaves who dared steal their bodies from their rightful owners, but the relief of Branson counted too.

Of course, levying war still meant something more closely approximating war. You had to use “actual force” to graduate from talk to treason. What counted as that force? The Army of Northern Virginia qualifies and Samuel Wood’s band operated in similar ways, if on a vastly smaller scale. How big and organized did a treasonous conspiracy have to get? Not very:

It is not necessary that there should be any military array, or weapons, nor that any personal injury should be inflicted on the officers of the law. If a hostile army should surround a body of troops of the United States, and the latter should lay down their arms and submit, it cannot be doubted that it would constitute an overt act of levying war, though no shot was fired or blow struck.

Samuel Newitt Wood

Samuel Newitt Wood

Nobody shot Samuel Jones, but the threat of force worked just as well. If we grant that for the people Jones and his allies intimidated at the Kansas polls, then we can’t exclude the same tactics used against them. Samuel Wood and his men came out with guns, in a rush, outnumbering Jones and demanding his prisoner. It didn’t take a genius or a clairvoyant to know what would probably happen if he refused to yield up Branson. As Curtis wrote:

The presence of numbers who manifest an intent to use force, if found requisite to obtain their dmeands, may compel submission to that force, which is present and ready to inflict injury, and which may thus be effectually used to oppose the execution of the law. But, unfortunately, it will not often be necessary to apply this principle, since actual violence, and eve murder, are the natural and almost inseparable attendants of this great crime.

To cast a net broad enough to consider Jones acting under the laws of the United States also requires us to sweep up Kansas poll workers. Unlike the Sheriff, they had the letter of the Kansas-Nebraska Act on their side. If it did not constitute a law of the Untied States, then no act of Congress could. Jones’ menacing of them looks at least as much like treason as Wood and company menacing him. Neither incident resulted in violence, contrary to Curtis’ expectations, but they didn’t need to.

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.