Lysander Spooner: Freedom Trumps the Rule of Law

On May 22, 1856, South Carolina Representatives Preston Brooks and Laurence Keitt, along with Virginia Representative Henry Edmundson, made a visit to the Senate chamber. When they arrived, the balcony above the chamber still contained some straggling observers, mostly wives of senators. Since Brooks and Keitt were southern gentlemen, they respectfully waited for the ladies to leave.

Once the galleries were clear and only men remained in the chamber, Brooks and his allies approached Massachusetts Senator Charles Sumner, who was writing at his desk. Their reason for approaching Sumner was to respond to a speech Sumner had recently given, called “The Crime Against Kansas.”

Preston Brooks vs. Charles Sumner
Sumner was a Radical Republican (he is sometimes referred to as an abolitionist, which is a small exaggeration). He gave his speech over the course of two days — May 19th and 20th — and in it, he issued impassioned moral condemnations of slavery and the pro-slavery activists in the Kansas territory. Among the people called out in the speech was Senator Andrew Butler. In what may be the most enduring line of the lengthy speech, Sumner said, “Senator Butler has chosen a mistress. I mean the harlot, slavery.”

So on May 22, when Preston Brooks approached Sumner, he was doing so partly out of his devotion to South Carolina’s peculiar institution, but also out of a sense obligation to defend his family’s honor. “Mr. Sumner,” Brooks said, “I have read your speech twice over carefully. It is a libel on South Carolina, and Mr. Butler, who is a relative of mine.”

Sixteen years earlier, in 1840, Brooks was injured in a duel by being shot in the hip. Because of this injury, Brooks had to walk with a cane for the rest of his life. His cane was necessarily in hand when he spoke to Senator Sumner, and after he offered his accusation of libel, Brooks swung his cane and started beating Sumner viciously.

Brooks’ allies did not participate in the beating, but they did hold off the other men in the senate chamber with a gun, preventing them from interfering on behalf of Sumner. Brooks continued beating the senator so brutally that at one point, Sumner jerked up from his desk, ripping out the bolts that kept it fastened to the floor. The beating was so severe that Brooks broke his cane, but he kept beating Sumner until he was finally restrained.

Sumner suffered such great injuries that he was not able to return to his senate seat for several years, though he kept getting reelected even while he was absent during his recovery. For the caning, Brooks was hailed as a hero in his home state, and supporters sent him hundreds of new canes to replace the one he broke. Even though he resigned from his seat in the House of Representatives, he was quickly reelected.

Sumner took this vicious beating because of his vehement opposition to slavery. Compared to more moderate Republicans like Abraham Lincoln, Sumner’s moral indignation did make him seem, to many people at the time, like an abolitionist. Most people would never question his anti-slavery credentials.

But Lysander Spooner was not “most people.”

Charles Sumner vs. Lysander Spooner
In 1845, Spooner published the first part of his work The Unconstitutionality of Slavery. When he wrote this, he believed that the constitution could not be reasonably interpreted as protecting slavery. This was partly based on what is known as the “higher law doctrine” that many abolitionists adhered to; there is a higher law than the laws of our government, and if we are going to interpret the constitution as a valid legal document, we can only do so in a way that does not violate this higher law. The other major argument Spooner made was that the framers of the constitution, because they never actually used the word “slave” in the document, were tacitly acknowledging its invalidity (the use of the word “slave” is one of the few differences between the Confederate constitution and the United States constitution).

His interpretation was rejected by such abolitionists as William Lloyd Garrison who believed that the constitution allowed slavery — if not in spirit, it clearly allowed it in practice — and because of this, the constitution was a document unworthy of being upheld. After the infamous Dred Scott decision, in which the Supreme Court ruled that it was illegal for the federal government to prevent any slave owners from taking their slaves to any of the US territories, Spooner would adopt this interpretation as well.

But Charles Sumner didn’t accept either interpretation. Although Sumner was vehemently opposed to slavery, he believed that the constitution allowed it until an amendment saying otherwise was ratified. What made Sumner different from the anarchistic Garrison was that he did not use this as a basis for the rejection of the constitution. He believed that the constitution should be upheld first, and that slavery should be abolished only to the degree that it is consistent with constitutional legality.

To Lysander Spooner, this was a moral contradiction, and one for which Sumner should not be forgiven.

Also unlike Spooner, Sumner supported the Union cause in the American Civil War. Even many abolitionists who originally supported the southern secession, like William Lloyd Garrison, switched to supporting the war after Lincoln issued his Emancipation Proclamation. But Spooner was nothing if not consistent, and he believed that regardless of the Confederacy’s immoral support of slavery, the use of force to keep them in the Union was little more than the extension of “political slavery” by the Union government.

In his famous No Treason pamphlets, Spooner outlined his view that treason was the action of professing friendship but acting as an enemy. The south, he claimed, was not treasonous because they did not profess friendship. They openly declared their desire to secede. The north, he claimed, was the treasonous party because it claimed friendship with the south while using military force to make them submit to a government they did not recognize.

Before he wrote his No Treason pamphlets, Spooner expressed these views in a pamphlet written as an open letter to Charles Sumner, written in 1864. In it, he said:

Since December 1851, you have been under oath, as a Senator, to support the Constitution; and have made the subject of Slavery your principal topic of discussion; and have made, during all that time, the loudest professions of devotion to liberty. Yet during all the same period you have been continually conceding that the constitution recognized the Slaveholder’s right of property in his slaves; that those held in slavery had no rights under the constitution; and that the general government could not interfere for their liberation.

To Spooner, this was an unforgivable hypocrisy. If Sumner believed that the constitution protected slavery, he should have refused to defend the constitution. If he opposed slavery and supported the constitution, he could only have done so under Spooner’s 1845 interpretation of the issue. Anything else was a moral contradiction.

Your concessions, as to the pro-slavery character of the constitution,” Spooner wrote, “have been such as, if true, would prove the constitution unworthy of having one drop of blood shed in its support.” He went on to explain that by doing this, Sumner had made it impossible for the north to argue that it was fighting a war for liberty. “You have thus, to the extent of your ability, place the North wholly in the wrong, and the South wholly in the right. And the effect of these false positions . . . has been to fill the land with blood.”

In his closing remarks, Spooner laid down a verbal beating that could only be compared to the physical one Sumner had received years early from Preston Brooks:

In your pretended zeal for liberty, you have been urging on the nation to the most frightful destruction of human life . . . You have, with deliberate purpose, and through a series of years, betrayed the very citadel of liberty, which you were under oath to defend. And there has been, in the country, no other treason at all comparable with this.

Lysander Spooner, writing in 1864, was professing a view that even today is considered to be utterly controversial: It is not only possible to oppose the institution of slavery while supporting secession, it is an absolute contradiction to hold any other combination of positions.

In Spooner’s view, all the northern supporters of the war accomplished, including Senator Sumner, was to replace chattel slavery with political slavery.

Written by Chris Calton and published by Mises Institute ~ October, 2017. Chris is a Mises University alumnus and an economic historian. He is writer and host of the Historical Controversies podcast.

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