NORTH V. SOUTH: A LEGAL HISTORY OF THE CANING
OF CHARLES SUMNER
Williamjames Hull Hoffer∗
On May 19 and 20, 1856, Republican Senator Charles Sumner from
Massachusetts gave a lengthy oration on what he called “The Crime Against
Kansas” from the floor of a packed United States Senate.1 On May 22,
Democratic Congressman Preston S. Brooks from South Carolina used his
gutta percha cane with gold-headed handle to beat Senator Sumner into
bloodied unconsciousness. According to a letter he wrote to his brother after
the fact, in order to explain what he was about, Brooks made the following
statement to the then-seated Senator prior to his first blow: “Mr. Sumner, I
have read your speech with care and as much impartiality as was possible
and I feel it my duty to tell you that you have libeled my state and slandered
a relative who is aged and absent and I am come to punish you for it.”2
Besides the sheer brazenness of the attack was the fact that it took place on
the floor of the U.S. Senate in Washington, D.C. Not surprisingly, the
incident made national news.
To this day, many historians credit this assault with being a key event in
the chain of falling dominoes that led to the Civil War—the nation’s
bloodiest, and possibly most transformative conflict.3 However, others argue
the assault was merely one event among many, emblematic of the divisions
in the country at most, in a nation headed inexorably towards fratricidal
∗
Associate Professor, Seton Hall University. © 2011 Williamjames Hull Hoffer
1. Substantial portions of this article are derived from WILLIAMJAMES HULL HOFFER,
THE CANING OF CHARLES SUMNER: HONOR, IDEALISM, AND THE ORIGINS OF THE CIVIL WAR
(2010).
2. T. LLOYD BENSON, THE CANING OF SENATOR SUMNER 132 (2004).
3. For a more detailed look at this incident, its key players, origins, aftermath, and
significance, see HOFFER, supra note 1, at 1.
515
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conflict.4 What we might miss among the colorful characters, dramatic twists
and turns, and the sharp contrast between Brooks’ adherence to the honor
culture and Sumner’s brash abolitionism is that the caning of Charles Sumner
was as much a legal clash—a deeply Constitutional one at that—as it was a
culture clash.5 As Alexis de Tocqueville wrote about America in the 1820s
and 1830s, “Scarcely any political question arises in the United States which
is not resolved, sooner or later, into a judicial question.”6 The time has come
to understand the caning as part of the constitutional context that brought
about the Civil War that started one hundred and fifty years ago.
This article explores this incident as a matter of law in three different
respects. First, there is the division between Sumner and Brooks, North and
South, abolitionist and states’ rights defender of slavery on constitutional
grounds. Second, there is the clash between these two lawyers about the
nature of law itself. Third, the caning itself presented legal issues about
honor, congressional privilege, federal criminal law, and the workings of an
adversarial legal system in a time of fractious legal culture. This panoply of
issues will help us understand a little better not only the workings of
American law in the years leading up to the Civil War, but also how that
very system helped bring about that momentous conflict.
Debate in Congress over the expansion of slavery into the territories had
a long and often verbally violent career. Overstatement, threats of secession,
and predictions of bloodshed marked the controversy over Missouri’s
application for statehood in 1819. Missouri was then part of the Louisiana
Territory acquired by purchase from France in 1803 and under the provisions
of the Northwest Territory Act of 1787, its provisional legislature could write
a republican constitution and petition for statehood when the population had
reached 60,000. By 1819, much of that population had come from the
neighboring southern states, and many of those migrants had brought their
slaves with them (some 10,000 slaves by 1820). But when the petition for
statehood, with an accompanying draft constitution, arrived at Congress, it
did not bar slavery. New York Republican congressman James Tallmadge
introduced a motion to provide for gradual emancipation of Missouri’s
slaves, and the floodgates of sectional vituperation opened. A series of
compromises brokered in the Senate by Kentucky’s Henry Clay ended the
crisis. Missouri entered the Union as a slave state and Maine, hitherto a
4.
1991).
5.
6.
1984).
See THE CAUSES
OF THE
CIVIL WAR, REVISED EDITION (Kenneth M. Stampp ed.,
For a summary of the literature on these topics see BENSON, supra note 2, at 1.
ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 126 (Richard D. Heffner ed.,
2013]
THE CANING OF CHARLES SUMNER
517
province of Massachusetts, entered as a free state. More important, the rest of
the Louisiana Territory was divided into future free and slave states at 36-30’
latitude—a line of demarcation that would become a part of the controversy
over the admission of Kansas.7
The proximate cause, if you will, of the confrontation between our two
lawmakers and lawyers was this debate over the events in the Kansas
territory, abetted in Sumner’s mind by the Kansas-Nebraska Act of 1854,
which gave the people of Kansas the authority to determine whether or not
their future would lie in a free state or a slave state. For the act’s supporters,
like its key sponsor in the Senate, Stephen A. Douglas of Illinois, the
question was one of “popular sovereignty.” This notion held that the people
of a territory had the right to self-determination. Closely linked to the
Democratic Party’s founding principles of states’ rights and individual
liberty, this set of ideas comprised more than just a party slogan. It was in the
DNA of the democracy, as the party liked to be known, stemming from the
leadership of the party at the time it was formed: Andrew Jackson and Martin
Van Buren. Theirs was not just a congeries of policies and political
preferences. It was a constitutional philosophy that claimed sole legitimacy
in the face of the Federalist Party and its ideological successors in the short
lived National Republican party that supported John Quincy Adams to
succeed James Monroe as president in 1824.8
But the Kansas Nebraska Act of 1854,9 passed after great acrimony,
repealed the Missouri Compromise line of 36-30, for under it Kansas lay
north of the line and should have entered the Union as a free state. In fact, no
sooner had the Act passed, than pro-slave migrants from Missouri poured
7. See MICHAEL HOLT, THE FATE OF THEIR COUNTRY: POLITICIANS, SLAVERY
EXTENSION, AND THE COMING OF THE CIVIL WAR (2004). For the seminal books on the 1850s,
see AVERY CRAVEN, THE COMING OF THE CIVIL WAR (1957); DAVID M. POTTER, THE
IMPENDING CRISIS, 1848-1861 (1976); 1 WILLIAM W. FREEHLING, THE ROAD TO DISUNION:
SECESSIONISTS AT BAY, 1776-1854 (1990), 2 THE ROAD TO DISUNION: SECESSIONISTS
TRIUMPHANT, 1854-1861 (2007); MICHAEL F. HOLT, THE POLITICAL CRISIS OF THE 1850s
(1978); BRUCE LEVINE, HALF SLAVE AND HALF FREE: THE ROOTS OF THE CIVIL WAR (1992);
WHY THE CIVIL WAR CAME (Gabor S. Boritt ed., 1996); EDWARD L. AYERS, WHAT CAUSED
THE CIVIL WAR? REFLECTIONS ON THE SOUTH AND SOUTHERN HISTORY (2005); KENNETH M.
STAMPP, THE IMPERILED UNION: ESSAYS ON THE BACKGROUND OF THE CIVIL WAR (1980);
MARK W. SUMMERS, THE PLUNDERING GENERATION: CORRUPTION AND THE CRISIS OF THE
UNION, 1849-1861 (1987); Jean Harvey Baker, Politics, Paradigms, and Public Culture, 84 J.
AM. HIST. 894, 894–99, (1997); JONATHAN H. EARLE, JACKSONIAN ANTISLAVERY & THE
POLITICS OF FREE SOIL, 1824-1854 (2004).
8. See generally GERALD LEONARD, THE INVENTION OF PARTY POLITICS: FEDERALISM,
POPULAR SOVEREIGNTY, AND CONSTITUTIONAL DEVELOPMENT IN JACKSONIAN ILLINOIS (2002).
9. Kansas Nebraska Act of 1854, 10 Stat. 277 (1854).
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into the Territory with the intent of occupying it for the slave power. Led by
David Atchison, the pro-slavery forces were determined to carry slavery to
the Pacific. They had blustered and threatened secession when California
entered the Union as a free state, but much territory lay north of California,
and had it been organized as slave states, slavery would have had the
permanent protection of a friendly U.S. Senate.10
To what extent the controversy between pro-slavery and so-called free
soil advocates was really about slavery or in the alternative about states’
rights, was never clear. Certainly politics was involved, as the anti-slavery
coalition of free soil Democrats, “Conscience Whigs” Liberty Party men, and
abolitionists were forming the new Republican Party (not to be confused
with Jefferson’s Republicans, whose direct descendent was the Democratic
Party) around the issue of free soil. But many of the Stalwarts of that new
party were abolitionists rather than mere free soil advocates. It was these
men whom the defenders of the South and the “peculiar institution” of
slavery saw as the real danger to southern interests and honor.
Despite these fractious debates, in some respects Charles Sumner and
Preston S. Brooks were alike. They were both well educated at the foremost
school in their respective states: Harvard and the future University of South
Carolina. They came from distinguished if not elite families. Although
Sumner was eight years older, their generations were not entirely different.
They came from old stock families that could trace their roots to the
founding of their respective colonies. Finally, they were both admitted to the
bar and practiced law for a time before settling into their careers in politics.
But, there were important differences and these differences stemmed from
the distinct histories of their home states. Preston S. Brooks was a product
and defender of both the South as a region and slavery as an institution.
Brooks’ family lived in the upcountry, in the ninety-sixth electoral
district of Edgefield County known as “Old 96”. “Fighting Edgefield”
became the center point for South Carolina politics as the population shifted
to the interior. At the same time, more so than any other area in South
Carolina, perhaps the entire South, this district gained a reputation for
interpersonal violence. While in slavery itself violence hovered everywhere,
the degree of violence among the ruling class was untoward. In a moral
pamphlet about a wife who had killed three of her husbands he wrote while
there as a minister, The Devil in Petticoats, Parson Mason L. Weems of
10. For a specific study on how “Bleeding Kansas” entered into the national political
debate, see CRAIG MINER, SEEDING CIVIL WAR: KANSAS IN THE NATIONAL NEWS, 1854-1858
(2008).
2013]
THE CANING OF CHARLES SUMNER
519
George Washington biography fame, remarked: “Oh mercy! . . . Another
murder in Edgefield. For sure it must be pandemonium itself, a very district
of Devils!”11
Preston Brooks was born in Edgefield on August 5, 1819, in a substantial
mansion surrounded by four acres of flower gardens. He was the second son
of planter, lawyer, and politician Whitfield Brooks and Mary Carroll Brooks.
His family connections crisscrossed the state, but with this prestige came the
perils of a closely related, factional community. Young Preston did well in
school and was intelligent, good-looking, and good natured according to
most accounts. After schooling at home, then Moses Waddel’s School at
Willington, he attended South Carolina College, later re-named the
University of South Carolina, in the state capital, Columbia. There he
demonstrated the strong personality that colored his adult life. While a
superb student, he was frequently absent.12 The taverns and social
opportunities were too much of a temptation for this six foot braggadocio.
Altercations were frequent enough to gain notice.
Three episodes are worthy of description. After a disputed college
election, he fought with a fellow student. Because he had refused to duel his
opponent, he received only a temporary suspension while the other student
was expelled. One might say that college boys, being privileged and
recognized as gentlemen often took to the field of honor. The second incident
happened shortly before his expected graduation when Brooks heard his
brother had been arrested and jailed. With two pistols he broke into the
jailhouse and demanded his brother’s release. Disarmed without further
incident, no charges were brought, but the College had had enough of his
antics and withheld his degree.
11. MASON LOCKE WEEMS, THE DEVIL IN PETTICOATS, OR, GOD'S REVENGE AGAINST
HUSBAND KILLING 3 (1857). For information on Edgefield in particular, see JACK KENNY
WILLIAMS, VOGUES IN VILLAINY: CRIME AND RETRIBUTION IN ANTE-BELLUM SOUTH
CAROLINA (1959); JACK KENNY, DUELING IN THE OLD SOUTH: VIGNETTES OF SOCIAL HISTORY
(1980); ORVILLE VERNON BURTON, IN MY FATHER’S HOUSE ARE MANY MANSIONS: FAMILY
AND COMMUNITY IN EDGEFIELD, SOUTH CAROLINA (1985).
12. For Brooks’ biography see Robert Neil Mathis, Preston Smith Brooks: The Man and
His Image, SOUTH CAROLINA HISTORICAL AND GENEALOGICAL MAGAZINE, October 1978, at
79; STEPHEN W. BERRY II, ALL THAT MAKES A MAN 296–311 (2002); J. Holt Merchant,
Laurence M. Keitt: South Carolina Fire-Eater (1976) (unpublished Ph.D. dissertation, Univ. of
Virginia); Eric Harry Walther, The Fire-Eaters, the South, and Secession (1988) (unpublished
Ph.D. dissertation, La. State Univ.); ALVY L. KING & LOUIS T. WIGFALL: SOUTHERN FIREEATER (1970); and C. W. Lord, Young Louis Wigfall: South Carolina Politician and Duelist,
SOUTH CAROLINA HISTORICAL AND GENEALOGICAL MAGAZINE, April 1958, at 59.
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A more serious encounter developed in 1840 when Louis T. Wigfall, a
prominent rival of the Brooks family in Edgefield County politics, “posted”
Whitfield Brooks for refusing to duel him. Posting was the last resort of an
honor dispute with a recalcitrant opponent under the Code Duello. One put a
sign in a public place denouncing the man in no uncertain terms. Per
tradition, Wigfall also chose to defend the sign against removal. To be posted
was one of the worst forms of shaming. Whitfield Brooks’ brother-in-law,
James Parsons Carroll, and another relative, Thomas Butler Bird, confronted
Wigfall. In the pistol fight that ensued Bird died and Carroll challenged
Wigfall to a duel. They met on Goat Island in the Savannah River to avoid
falling under a legal jurisdiction that banned dueling. After an exchange of
shots, their seconds convinced them honor had been satisfied.
But this was not satisfying to Brooks, who renewed the challenge. When
their initial misses proved insufficient, Wigfall was shot through the thighs
and Brooks in the hip in the second exchange. Both took time to recover, but
Brooks emerged the victor, at least in public opinion. Negotiations over the
various parties’ newspaper publications continued after their respective
recoveries. Eventually, a year after the original dispute had begun, both
agreed to retractions of previous statements, and their seconds were credited
with averting further violence. We should observe that despite the fact that
dueling was illegal no one would have thought to prosecute them for their
behavior. In this community, there was a distinction between the letter of the
law and actual sanctioned behavior. In cases of honor, social approbation
sometimes came from setting aside the law books.
South Carolina, like other slave states, passed anti-dueling laws, setting
heavy fines for participation and ruling that in the case of a fatality, the
charge was homicide. But seldom if ever were these penalties imposed.
Legislatures would repeal anti-dueling laws but juries would never convict.
The custom was too popular even though it meant that the upper caste of
society was given the privilege of “natural liberty” that is the right to
challenge and fight under rules of the code duello, whereas ordinary citizens
had to face the majesty of law.13
But Brooks did not act wholly according to his personal whim. Culture
has a stickiness, an enveloping power that no one can entirely shed. Brooks
13. South Carolina’s trajectory towards secession can be found in WALTER EDGAR,
SOUTH CAROLINA: A HISTORY (1998); Lacy K. Ford, ORIGINS OF SOUTHERN RADICALISM: THE
SOUTH CAROLINA UPCOUNTRY, 1800-1860 (1988); RACHEL N. KLEIN, UNIFICATION OF A
SLAVE STATE: THE RISE OF THE PLANTER CLASS IN THE SOUTH CAROLINA BACKCOUNTRY,
1760-1808 (1990); HAROLD S. SCHULTZ, NATIONALISM AND SECTIONALISM IN S.C., 1852-1860
(1969); MANISHA SINHA, THE COUNTERREVOLUTION OF SLAVERY (2000).
2013]
THE CANING OF CHARLES SUMNER
521
wanted to be regarded by all in his community and state as a gentleman,
wanted his father’s and his older brother’s and his neighbor’s admiration,
and to have acted otherwise in the Wigfall affair would have been to court
shame. That state of existence carried far greater meaning than it does today.
To be shamed meant to be considered an outcast of society, including one’s
own family perhaps, and be forced to leave the region. Such a separation
doomed the miscreant possibly to penury because he had no friends or family
members to advance his fortune. In a society of low productivity and a
limited number of professional positions of significance that was a genuine
hardship. It was this combination of personality and culture that almost
dictated Brooks’ actions. By submitting himself to the code he showed his
mettle as a man.14
Brooks was less fortunate when it came time to prove his mettle in battle.
He captained the all-volunteer Palmetto regiment in the Mexican War, but
had to leave for home when he developed debilitating typhus upon his entry
on Mexican soil. He went home. In agony over his long recovery, seeing in
his neighbors’ faced disparaging looks, he managed to arrange for a regular
army commission and sped to the front. Once there, he received a double
blow: the death of his much beloved older brother and the end of formal
hostilities. With all of the fanfare of having served and none of the manful
risks of combat, he returned home. He felt great shame in this set of
circumstances.
It is no accident that the honor culture also prevailed in other societies
that shared the slaveholding South’s circumstances. With its aristocrats, large
peasant population, and cultivated sense of superiority, France popularized
its honor code through the presence of its officers among the revolutionaries
in America’s war for independence. Russia lost perhaps its greatest man of
14. For detailed descriptions and analyses of the honor culture in the South see Edward
Pessen, How Different from Each Other Were the Antebellum North and South, THE AM. HIST.
REV. Dec. 1980, at 1119.; Michael Stephen Hindus, PRISON AND PLANTATION: CRIME,
JUSTICE, AND AUTHORITY IN MASSACHUSETTS AND SOUTH CAROLINA, 1767-1878 (1980);
BERTRAM WYATT-BROWN, YANKEE SAINTS AND SOUTHERN SINNERS (1985); HONOR AND
VIOLENCE IN THE OLD SOUTH (1986); BERTRAM WYATT-BROWN, THE SHAPING OF SOUTHERN
CULTURE: HONOR, GRACE, AND WAR, 1760s-1880s (2001); BERTRAM WYATT-BROWN,
SOUTHERN HONOR: ETHICS AND BEHAVIOR IN THE OLD SOUTH (2007); EDWARD L. AYERS,
VENGEANCE AND JUSTICE: CRIME AND PUNISHMENT IN THE 19th-CENTURY AMERICAN SOUTH
(1984); KENNETH GREENBERG, HONOR & SLAVERY (1996); KENNETH S. GREENBERG,
MASTERS AND STATESMEN: THE POLITICAL CULTURE OF AMERICAN SLAVERY (1988); DICKSON
D. BRUCE, JR., VIOLENCE AND CULTURE IN THE ANTEBELLUM SOUTH (1979); Elliott J. Gorn,
Gouge and Bite, Pull Hair and Scratch: The Social Significance of Fighting in the Southern
Backcountry, THE AM. HIST. REV. Feb. 1985, at 18.
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[Vol. 43:515
letters, Alexander Pushkin, in a duel. Germany was rife with young men who
bore the scars of its form of duels with short sabers or had died from a thrust
from a short sword. Duels were the natural outgrowth of the honor culture
and the honor culture a natural outgrowth of an aristocratic society built on
the oppression of a servile class.15
In many respects, this was a transatlantic cultural phenomenon, an
outgrowth of the Romantic Movement. Besides reading Johann Wolfgang
von Goethe’s The Sorrows of Young Werther, gentlemen in all of these
societies read the novels of authors like Sir Walter Scott, which emphasized
the knightly virtues of bygone eras. We also cannot discount the impact of
religion, in particular Protestantism’s emphasis on a sinful world and the
inevitable temptations of man’s passionate nature. An aside, oddly Scott was
a great opponent of dueling and the ethic of honor itself even though he
romanticized the heroics of violent men.
Despite the fact that South Carolina had outlawed the practice, as
Brooks’ own history shows, features of the honor culture like dueling
remained a part of South Carolinian life. Linked to one’s public reputation,
honor was more than just manliness, character, and position in society. It
undergirds everything that made you who you were from your creditworthiness—a critical item in an economy built on debt—to your social life.
Men like Andrew Jackson and Sam Houston had to flee their homes in South
Carolina and Tennessee, respectively, when their honor was impinged. For
Jackson it was business failures and allegations about his beloved wife; for
Houston it was a mystery relating to his new wife. Because of its centrality to
life in the South, and South Carolina especially, we cannot discount the
honor culture’s effect on every southern gentleman’s world view including
that of Preston S. Brooks.16
15. There is no better source other than the works of Bertram Wyatt Brown than
JOANNE B. FREEMAN, AFFAIRS OF HONOR: NATIONAL POLITICS IN THE NEW REPUBLIC (2001)
for discussion of the honor culture and its widespread influence.
16. For the South’s relationship with slavery and its effects on their politics, see JOHN
HOPE FRANKLIN, THE MILITANT SOUTH, 1800-1861 (2002); AVERY O. CRAVEN, THE GROWTH
OF SOUTHERN NATIONALISM, 1848-1861, A HISTORY OF THE SOUTH (Wendell Holmes
Stephenson & E. Merton Coulter eds., 1953); JAMES C. COBB, AWAY DOWN SOUTH: A
HISTORY OF SOUTHERN IDENTITY (2005); STANLEY M. ELKINS, SLAVERY: A PROBLEM IN
AMERICAN INSTITUTIONAL AND INTELLECTUAL LIFE (3d ed., 1976); ROBERT WILLIAM FOGEL &
STANLEY L. ENGERMAN, TIME ON THE CROSS: THE ECONOMICS OF AMERICAN NEGRO SLAVERY
(1974); SALLY E. HADDEN, SLAVE PATROLS: LAW AND VIOLENCE IN VIRGINIA AND THE
CAROLINAS (2001); CHRISTINE LEIGH HEYRMAN, SOUTHERN CROSS: THE BEGINNINGS OF THE
BIBLE BELT (1997); THOMAS D. MORRIS, SOUTHERN SLAVERY AND THE LAW, 1619-1860
2013]
THE CANING OF CHARLES SUMNER
523
Brooks, unlike Sumner, had a well-established family life. Though his
first wife died soon after the birth of their only child, he followed tradition
and married her younger sister with whom he had two more children. With
the brief interruption of the Mexican-American War, he practiced law,
managed a small plantation, and embarked upon a career in politics. By
1852, when he ran for Congress in the fourth district, national politics had
turned sour for defenders of the slaveholding south. England had ended
slavery in its empire, and so had the French. The Royal Navy patrolled the
African coast, intercepting slave traders. Latin American countries with the
exception of Brazil had renounced slavery, though it still existed in portions
of their old empire that the Spanish retained. More worrisome, at home
abolitionists had redoubled their efforts, shifting from the effort to persuade
slaveholders to free their slaves and provide for their passage to Africa to
immediate emancipation in the states. The land gained from the Mexican
War was not opened to slavery.
The inability to expand the realm of slavery was felt keenly in South
Carolina. With no outlet for its black majority, many of the state’s political
leaders had developed a combative stance toward the slavery question. While
a few moderates like Chief Justice John Belton O’Neal urged confidence in
the law and the union, others became “fire-eaters” and demanded that some
accommodation be made to South Carolina’s needs or else. Whatever one’s
political stance in the state, it had taken on a Sparta-like quality by the early
1850s. All of its free white males were to serve in the militia. Every man
capable of bearing arms would have to gain a working knowledge of military
affairs. When a master class is sitting on the powder keg of an enslaved
African-American majority, they might well choose the Spartan solution to
their enslaved helots: a commitment to the ways of soldiering and slave
patrols.
This particular version of the social contract wedded the contradictory
principles of limited government and the maintenance of a massive authority
over the slaves. In the English speaking world, the social contract took the
form of laws that defined citizenship, and the place of the citizen in this
society. Though Brooks gained admission to the bar and practiced briefly for
a time, the same as Sumner, his role as an attorney in South Carolina was
significantly different than it would have been in Massachusetts because of
slavery. For example, Brooks had no opportunity to participate in a venture
like prison reform because there were no state penitentiaries in South
(1996); KENNETH M. STAMPP, THE PECULIAR INSTITUTION: SLAVERY
SOUTH (1956).
IN THE
ANTE-BELLUM
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Carolina and penal code reform became associated with abolitionism. For
antebellum South Carolina the very concept of state-run penitentiaries for
perpetual imprisonment was inimical. The prototypical criminal was the
slave, devious in character, primitive in intellect, and prone to all the evils of
a supposedly barbaric race under the philosophy that created race-based
slavery. The slave system kept the animal nature of blacks in check.17
Feeding into this siege mentality was South Carolina’s unique
experience in the Nullification Crisis from 1828 to 1833. South Carolina had
suffered enormously economically during the 1820s. Though it is likely poor
state planning, the financial collapse of 1819, and the rapidly depleted soils
of the northwest from cotton cultivation were the cause, an influential
majority held the tariff—taxes on imports—the United States government
passed in the 1820s, particularly the so-called Tariff of Abominations in
1828, responsible. Under the philosophical and legal reasoning of John C.
Calhoun, Jackson’s increasingly estranged vice-president, the South
Carolina’s legislature adopted the nullification doctrine as state policy in
November of 1832, declaring that each state had a right under the U.S.
Constitution to declare null and void federal legislation under certain
conditions and that South Carolina was exercising that right regarding the
tariff.
As Andrew Jackson was preparing to send the U.S. Navy to Charleston
harbor to enforce federal law and South Carolina’s governor prepared its
militia, cooler heads in Washington worked out a compromise. The Congress
repealed the sections of the tariff law South Carolina opposed and passed a
Force Bill authorizing President Jackson to use the U.S. military against
South Carolina. When it became clear that even the leaders of Georgia and
Alabama opposed its stance on nullification, South Carolina repealed its
secession ordinance on March 11, 1833. Its leaders took several lessons from
this crisis. First, South Carolina should not be caught unprepared militarily.
Establishment of a military academy, later called the Citadel, in 1842
provided a future officer corps. Second, South Carolina should not act alone
in any dispute over federal government powers. Third, the rest of the country
preferred negotiation to war.
Though Preston Brooks seldom spoke in his two terms in the House prior
to his caning of Sumner, he endorsed these notions when he did speak (even
if his defense of measures like the Fugitive Slave Act of 1850 contradicted
17. See generally MICHAEL STEPHEN HINDUS, PRISON AND PLANTATION: CRIME, JUSTICE,
SOUTH CAROLINA, 1767-1878 (1980); KENNETH
AND AUTHORITY IN MASSACHUSETTS AND
GREENBERG, HONOR AND SLAVERY (1996).
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THE CANING OF CHARLES SUMNER
525
them). In defending the Kansas-Nebraska bill on March 15, 1854, he
summarized his constitutional philosophy as follows:
It becomes us of the South to avail ourselves of the opportune occasion, to
bring back congressional legislation within constitutional restraint—to
reassert the great constitutional principle, that as the people are the source of
all political power, they have, in the capacity of sovereign States, the
inherent right of self-government, and to regain our constitutional right to go
18
with our property, of every description, upon any part of the public domain.
He next provided a refutation of those whom he held to “love their brethren
in black more than those of the same color as themselves.”19
Brooks then quoted from such notable delegates to the Constitutional
Convention as Oliver Ellsworth, Roger Sherman, John Dickinson, Luther
Martin, George Mason, Elbridge Gerry, John Langdon, Charles Pinckney,
Hugh Williamson, Abraham Baldwin, and Gouverneur Morris to show the
preference for leaving slavery alone. In the words of Morris, “these things
form a bargain among the northern and southern States.”20 He either did not
know or willfully omitted the fact that Martin, Mason, and Gerry did not sign
the document.
Brooks also objected to the view that somehow the national interest
might differ from that of the local interest. “Sir, there is a suspicious sound in
that word national, which jars upon southern ears, and when coupled with
the doctrines it inculcates, comes athwart the gale like the low whistle of the
bandit, and admonishes honest men to look well to the security of their
estates.”21 Here, then, was a Jeffersonian view of the Constitution. It
protected all property. It was a compact among the several states. It had
limited powers. Anything that promoted a national spirit coming from the
federal government provoked suspicion. Finally, it had a long, distinguished
history with the support of many of the country’s leading political and legal
lights.22
18.
19.
20.
21.
22.
CONG. GLOBE, 33D CONG., 1ST SESS. 371 (1854) (statement of Rep. Preston Brooks).
Id.
Id. at 372.
Id.
For more on the ideology of the Democratic Party during the Civil War Era, see
ALEXANDER SAXTON, THE RISE AND FALL OF THE WHITE REPUBLIC: CLASS POLITICS AND MASS
CULTURE IN NINETEENTH CENTURY AMERICA (1990); HARRY L. WATSON, LIBERTY AND
POWER: THE POLITICS OF JACKSONIAN AMERICA (1990).
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[Vol. 43:515
Standing in stark contrast to what we may call this Jeffersoniandemocratic view of the Constitution was the advocacy of abolitionists like
Charles Sumner. It was not in complete opposition to the individualism and
lower case “d” democracy that Democrats like Brooks espoused, but it
differed in several important respects. Although Sumner gave several
orations that contained his constitutional principles, an analysis of his
constitutional arguments in his “Crime Against Kansas” speech is sufficient
for our present purposes. However, they may only be properly illuminated in
light of Sumner’s background.
Sumner was as sincere and as committed in his opposition to slavery as
Brooks was in its defense. Born in Boston on January 6, 1811, to a minister’s
family, the future senator had a distinguished lineage, but soon faced
straightened circumstances on the death of his father.23 Thanks to the
assistance of family friends, the boy attended elite schools in Boston before
embarking on his studies at Harvard, first as an undergraduate, then as a law
student. With his law degree in hand, he apprenticed, and then embarked
upon a legal career of some note, but not great financial success. Charles
Sumner found the work of an attorney to be beneath his considerable sense
of his own calling, his vocation.
With his practiced orations, Sumner gained a considerable reputation as
a speaker, but his devotion to his causes provoked as much consternation as
it did praise. He made a considerable stir by pleading for pacifism and world
peace on a day to commemorate the nation’s victory in the War of the
American Revolution. His fierce commitment to abolitionism, equal rights
for African-Americans, and moral purity brooked no compromise nor did he
devote much energy to coalition building even for causes like prison reform
that required a more sensitive touch. Thanks to his deft maneuvering and the
impressive efforts of his allies, the Massachusetts legislature of Democrats,
Conscience Whigs (those members of the Whig Party opposed to slavery),
and the nativist, anti-immigrant American or Know Nothing Party selected
him to be one of the Bay State’s U.S. Senators in 1850.
While there, the isolated abolitionist made many friends, but few allies
for his causes. His sole contribution had been his speeches. These mixtures
of harsh words, fierce arguments, Constitutional renderings, and classical
flourishes gave him a reputation far beyond any legislative accomplishments.
23. For a good, recent, short biography of Sumner, see FREDERICK J. BLUE, CHARLES
SUMNER AND THE CONSCIENCE OF THE NORTH (1994). See also DAVID H. DONALD, CHARLES
SUMNER AND THE COMING OF THE CIVIL WAR (1960); but see ANNE-MARIE TAYLOR, YOUNG
CHARLES SUMNER AND THE LEGACY OF THE AMERICAN ENLIGHTENMENT, 1811-1851 (2001)
(critiquing Donald’s portrait of Sumner).
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THE CANING OF CHARLES SUMNER
527
His “Crime Against Kansas” effort on May 19 and May 20 in 1856 was no
exception.
Sumner’s many hour oration was not a dry discourse on constitutional
principles. Nor was it simply a political harangue. It contained language that
Brooks likely considered offensive because Sumner had several ulterior
purposes in mind. These purposes connected his personhood and his
principles to the larger constitutional quarrel. As part of his description of
Senator Andrew P. Butler from South Carolina—Brooks’ second cousin and
the aged, infirm subject of his grievance—as the Don Quixote to Senator
Douglas’ Sancho Panza, Sumner stated:
The senator from South Carolina has read many books of chivalry, and
believes himself a chivalrous knight with sentiments of honor and courage.
Of course he has chosen a mistress to whom he has made his vows, and who,
though ugly to others, is always lovely to him; though polluted in the sight of
24
the world, is chaste in his sight—I mean the harlot, slavery.
He went on to describe the speech-impaired Butler later in the speech as
follows:
With regret, I come again upon the senator from South Carolina, [Mr. Butler]
who, omnipresent in this debate, overflowed with rage at the simple
suggestion that Kansas had applied for admission as a State; and, with
incoherent phrases discharged the loose expectoration of his speech, now
25
upon her representative, and then upon her people.
And, “He cannot open his mouth, but out there flies a blunder.”26 Last,
and certainly not inconsiderable was the conclusion of Sumner’s comparison
of the histories of Kansas and South Carolina:
Were the whole history of South Carolina blotted out of existence, from its
very beginning down to the day of the last election of the senator to his
present seat on this floor, civilization might lose—I do not say how little, but
surely less than it has already gained by the example of Kansas, in its valiant
24. T. LLOYD BENSON, THE CANING OF SENATOR SUMNER 99 (2004).
25. Id. at 117.
26. Id.
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struggle against oppression, and in the development of a new science of
27
emigration.
These were extraordinarily harsh words, far outside of the bounds of
decorum and propriety that usually governed speeches in the Senate. Why
was Sumner so vituperative?
The answer in part lies in the election cycle, for Sumner was running for
re-election in 1856 and the nascent Republican Party was battling for
supremacy in the North in this presidential election year; but, because he had
little in the way of legislative accomplishments (not unsurprisingly given that
his Republicans were a small minority in the Senate), he had only his
orations to promote himself and his party. After all, thanks to the state-based
electoral college, all the Republicans had to do was win the more populous
northern states. More substantially, he actually gained in stature when he
attracted even adverse publicity. The Senate floor became a microphone and
his voice carried into the remotest part of the country. As he himself stated in
the speech, “But the Slave Power dares anything, and it can be conquered
only by the united masses of the People. From Congress to the people I
appeal.”28 In his concluding remarks, he repeated the call. “To the People,
now on the eve of exercising the electoral franchise, in choosing a Chief
Magistrate of the Republic, I appeal, to vindicate the electoral franchise in
Kansas. Let the ballot-box of the Union, with multitudinous might, protect
the ballot-box in that Territory.”29 The Republican Party’s needs in the
Constitution’s framework for party success, thus, provided an incentive, if
not a spur, to exaggerate, stir up, and otherwise take advantage of disputes
that might otherwise have subsided.
But Sumner, if not entirely above politics, was also personally outraged
by the idea that slavery could become national. Sumner willed himself to the
center of this response. A voracious reader and a good friend of many of the
Transcendentalists of Boston’s energetic intellectual community, Sumner
was well aware of the writings of eminent New Englanders like Henry David
Thoreau whose civil disobedience ideas would echo down to civil rights
leaders like Mohandas K. Gandhi and Martin Luther King, Jr. It is likely that
Sumner wanted a violent response that would expose, at least to his way of
thinking and probably those of his constituents, the barbarity of the slave
power. Douglas’s off the cuff response to the “Crime Against Kansas”
27. Id. at 118.
28. CHARLES SUMNER, THE ANTI-SLAVERY CRUSADE IN AMERICA 91 (Arno Press, 1969).
29. Id. at 94.
2013]
THE CANING OF CHARLES SUMNER
529
speech was on the mark: “Is it his object to provoke some of us to kick him
as we would a dog in the street, that he may get sympathy upon the just
chastisement?”30
In addition, the speech was a long one and Sumner had probably
modeled it after the orations of Demosthenes and Cicero in not just its
structure, content, and purpose, but in its idealist desire to martyr himself for
his republic.31 For Sumner, the political and constitutional was the personal.
Time and space vanished as he became Cicero, defending the republic
against palpable evils within it. In his own person, ready to sacrifice himself
if need be, he became the defender of republican virtue against the greedy,
immoral Slave Power.
While his rhetoric reflected his Republican views of the constitutional
struggle, Sumner’s specific constitutional arguments reflected his more
optimistic stance about its relationship to slavery. Unlike fellow abolitionists
William Lloyd Garrison and Wendell Phillips, who condemned the
Constitution as pro-slavery, Sumner argued for an anti-slavery Constitution.
First and foremost, slavery was incompatible with law itself.
Suffice it to say, that slavery is in itself an arrogant denial of human rights,
and by no human reason can the power to establish such a wrong be placed
among the attributes of any just sovereignty. In refusing it such a place, I do
not deny popular rights, but uphold them; I do not restrain popular rights, but
32
extend them.
Slavery was not permissible in the territories, despite what Brooks and
others had argued. “And, sir, to this conclusion you must yet come, unless
deaf, not only to the admonitions of political justice, but also to the genius of
our own constitution, under which, when properly interpreted, no valid claim
for Slavery can be set up anywhere in the national territory.”33 Furthermore,
he continued, “Nothing can come out of nothing; and there is absolutely
nothing in the constitution out of which slavery can be derived, while there
30. CONG. GLOBE, 34TH CONG., 1ST SESS. 545 (1855) (statement of Sen. Stephen
Douglas).
31. See, e.g., Michael Pfau, Time, Tropes, and Textuality: Reading Republicanism in
Charles Sumner’s “Crime Against Kansas,” 6 RHETORIC & PUB. AFFAIRS 385, 385–413
(2003).
32. SUMNER, supra note 28, at 19.
33. Id.
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are provisions, which, when properly interpreted, make its existence
anywhere within the exclusive national jurisdiction impossible.”34
Sumner also enlisted the Constitution in defense of the Emigrant Aid
Society, an anti-slavery expansion settlement group based in New England
then immersed in the struggle over Bleeding Kansas. Although it
contradicted his assertions against the pro-slavery expansion forces, he
asserted for the Society a basic protected right of free settlement.
Sir, I beg senators to understand that this is a Government of laws; and that,
under these laws, the people have an incontestable right to settle any portion
of our broad territory, and, if they choose, to propagate any opinions there
not openly forbidden by the laws. If this were not so, pray, sir, by what title
is the senator from Illinois, who is an emigrant from Vermont, propagating
35
his disastrous opinions on another State?
Like any good lawyer, he drew from both the specific language of the
Constitution, and, when that did not aid him, its spirit. In this construction of
the Constitution as an anti-slavery law, he was certainly not alone. He was
the inheritor of a rich tradition of abolitionists who formed a jurisprudence
that did not allow for slavery. Though it had little to no support in U.S.
Supreme Court precedent, Sumner and his fellow abolitionists did not mind.
They were using it for a different constitutional purpose: to advocate for
transformative change.
But Sumner did not stop with construction of the Constitution as an antislavery document. He also contended that Butler and other pro-slavery
expansionists were attempting to contravene the Constitution by depriving
Kansans of the right to bear arms.
And yet such is the madness of the hour, that, in defiance of the solemn
guarantee, embodied in the Amendments to the Constitution, that ‘the right
of the people to keep and bear arms shall not be infringed,’ the people of
Kansas have been arraigned for keeping and bearing them, and the senator
from South Carolina has had the face to say openly, on this floor, that they
should be disarmed—of course, that the fanatics of slavery, his allies and
36
constituents, may meet no impediment.
34. Id. (emphasis added).
35. Id. at 58.
36. Id. at 64–65.
2013]
THE CANING OF CHARLES SUMNER
531
He went on to refute the idea that admitting Kansas without a large
population of settlers would be unprecedented and outside of Congress’s
constitutional powers.37
On May 22, 1856, shortly after one o’clock, Preston S. Brooks,
accompanied by his co-conspirator Representative Laurence M. Keitt,
entered the Senate chamber after impatiently waiting for Sumner to have left
it.38 Brooks sat in the back row of the chamber and waited. His friend,
Virginia representative Henry A. Edmundson, asked if he was now a senator.
Senators were elected by their states’ legislatures. Brooks replied fiercely
that he wanted to upbraid Sumner but could not while ladies were present.
He motioned to one particular woman who was sitting not far from Sumner
at the side of the chamber. Impatient with her persistence in his place of
business, Brooks asked the sergeant at arms to remove her as this was no
place for ladies. But, as the Senate had adjourned for the day, nothing could
be done but wait. For what must have seemed an eternity, Brooks did just
that until she left the room. Brooks then approached the still-seated Sumner.
Brooks later alleged that he uttered the following words: “Mr. Sumner, I
have read your speech with care and as much impartiality as was possible
and I feel it my duty to tell you that you have libeled my State and slandered
a relative who is aged and absent and I am come to punish you for it.”39
Brooks implied that he had come around the desk to face Sumner. It was a
long speech, and had Brooks delivered it as he said, surely Sumner would
have risen from his desk to reply. In fact, before he completed whatever he
said to Sumner, Brooks lifted his cane, specially selected for this sanguine
purpose, and began to hit Sumner on the head with as much force as Brooks
37. Id. at 68–79.
38. Besides the report of the U.S. House of Representatives, accounts of the incident
drawn from the various sources are within all the Sumner biographies, the histories of the
1850s, and the following: William E. Gienapp, The Crime Against Sumner: The Caning of
Charles Sumner and the Rise of the Republican Party, 3 CIVIL WAR HIST. 25, 218–45 (1979);
Manisha Sinha, The Caning of Charles Sumner: Slavery, Race, and Ideology in the Age of the
Civil War, 23 J. OF THE EARLY REPUBLIC 233, 233–62 (2003); Sylvia D. Hoffert, The BrooksSumner Affair: Prelude to Civil War, 11 CIVIL WAR TIMES ILLUSTRATED 35, 35–40 (1972);
Laura A. White, Was Charles Sumner Shamming, 1856-1859?, 3 THE NEW ENG. Q. 33, 291–
324 (1960); Harlan Joel Gradin, Losing Control: The Caning of Charles Sumner and the
Breakdown of Antebellum Political Culture (1991) (unpublished Ph.D. dissertation, The Univ.
of North Carolina at Chapel Hill) (on file with author); Kenneth A. Deitreich, Honor,
Patriarchy, and Disunion: Masculinity and the Coming of the American Civil War (2006)
(unpublished Ph.D. dissertation, West Virginia Univ.) (on file with author); Catherine Clinton,
Sex and the Sectional Conflict, in TAKING OFF THE WHITE GLOVES: SOUTHERN WOMEN AND
WOMEN HISTORIANS 54–55 (Michele Gillespie & Catherine Clinton eds., 1998).
39. ORVILLE VERNON BURTON, THE AGE OF LINCOLN 50 (2007).
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could muster. The initial blow stunned Sumner, and drove him back against
his chair. Disoriented, he could not rise because the chair was mounted to the
floor.
Brooks did not stop with a single blow. He continued to assail Sumner
with increasing fury until the cane shattered, and even then he did not
slacken his assault. Sumner thrashed about, attempting to ward off the blows,
but pinned beneath his desk, he was trapped. He did not remember that the
chair was on a set of tracks and could not be dislodged except by pushing
straight back. Bloodied, confused, and desperate to end the attack, Sumner
managed at last to dislodge the desk from its bolted moorings. Staggering
away from Brooks, he stumbled into the aisle. Brooks pursued him. As
Sumner collapsed to the ground unconscious from the blows to his head,
Congressman Edwin B. Morgan of New York caught him, the two men
striking the ground in a heap.
By this time all those present in the chamber had heard the commotion.
Their responses were not those of shocked passersby, nor those of caregivers.
Instead, so divided was the Congress by sectional and partisan feeling, that
they acted the role of sectional and party men. Keitt was unable to stop
Representative Ambrose S. Murray from restraining Brooks. Murray would
later testify he had no great concern for Sumner’s well-being, but feared
Brooks had lost control and might have killed Sumner if not blocked from
further mayhem. With the aid of a page and the sergeant at arms, Morgan,
like Murray a representative from New York, helped the now conscious
Sumner stumble to a cloakroom. After the doctor, Cornelius Boyle, had
closed the two gashes on his head with rough stitches, Sumner’s friend and
fellow Massachusetts Senator, Henry Wilson, who had rushed back into the
chamber upon hearing of the assault, helped him to a carriage. They went to
Sumner’s lodgings.
Brooks too received medical help. One of his backswings was so
vigorous it cut him above the eye and it required some attention before he
strode out of the chamber. He made sure he kept the head of the cane with
him as it was gold and of some value. Accompanied by Keitt and
Edmundson he returned to his rooms. Shortly thereafter he reported to the
authorities what he had done. A warrior tradition requires that the taker of
fair vengeance must report his deeds. He was not afraid to face the law
having accomplished his objective. He had given the loathsome Yankee a
“redress of a personal wrong.”40 He well knew this was not the end of the
matter. Legal proceedings necessarily followed.
40. CONG. GLOBE, 34th Cong., 1st. Sess. 1347 (June 2, 1856).
2013]
THE CANING OF CHARLES SUMNER
533
These events that flowed from the caning also indicate constitutional
aspects of the origins of the Civil War, in particular how the caning unfolded
in two other arenas: the Congress itself and federal court in Washington,
D.C., where Brooks defiantly faced the charge of assault. The first question
the Congress faced was which house had the authority to judge the matter.
The Senate committee came to the conclusion that, although one of its
members was the alleged victim, it did not have jurisdiction over a
representative. But, the committee was not unanimous in this verdict. Only
the Whig majority—there were no Republicans on the committee—
concluded that Brooks and his accomplices deserved punishment in their
recommendations to the House of Representatives. The Democratic minority
dissented and defended their House colleagues.41
A different result prevailed in the House committee, not the least of
which was because Republicans were a majority in that chamber. They
promptly investigated the incident taking statements and generally acting like
a court of inquiry. Not surprisingly, the Republican majority on the
committee found sufficient basis for expelling Brooks, and censuring his coconspirator who may well have been the one to push Brooks to the assault,
South Carolina Democrat Lawrence M. Keitt, and another friend, Henry A.
Edmundson of Virginia, who accompanied Brooks into the chamber.42
Unlike Keitt, who actively participated by standing in the aisle and
threatening all those who might have tried to stop Brooks, Edmundson
merely did not report Brooks to the authorities beforehand.
The House failed to expel Brooks, falling short of the necessary twothirds majority, but censured Keitt and exonerated Edmundson. Both Brooks
and Keitt resigned, but not before making speeches heaping scorn on their
opponents and justifying their defense of their state and region by making an
assault on the unarmed Sumner. Both were reelected without opposition or
much delay. Brooks’ trial in federal court was similarly perfunctory.
Given the state of law in the nation’s capital, this verdict was a likely
one. As Brooks noted in a speech in Congress on December 24, 1855: “We
are standing upon slave territory, surrounded by slave States, and pride,
honor, patriotism, all command us, if a battle is to be fought, to fight it here
upon this floor.”43 Without a federal common law of crimes, Maryland law
applied and Maryland was a slave state with slave state standards for
behavior, in other words, the honor code. It is hard to underestimate the
41. CONG. GLOBE, 34th Cong., 1st Sess. 1367 (June 2, 1856).
42. CONG. GLOBE, 34th Cong., 1st Sess. 1348–52 (June 2, 1856).
43. CONG. GLOBE, 34th Cong., 1st Sess. 77 (June 2, 1856).
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importance of the capital’s location, its situation in the Constitution as a mere
territory of the federal government, and the nature of law enforcement in this
day and age on the political situation that led to war, not the least of which
was the false confidence of Southern patriots and fears of the slave power in
the North.
As for the proceedings themselves, the devil was in the details. Just after
leaving the Senate floor, Brooks presented himself to Judge Hollingshead to
tender his bond for any subsequent criminal prosecution. Hollingshead
released him without bond as the action was premature. Upon the sworn
statement of an eyewitness to the assault, William Y. Leader of Philadelphia,
Hollingshead later issued an arrest warrant for Brooks. Oddly, contemporary
historians have ignored Leader’s account, which was published in 1875 in
The Works of Charles Sumner, instead preferring to rely solely on the House
investigating committee’s report, various statements in the Congressional
Globe, and Brooks’ unpublished writings. While some have cited to
newspaper stories, those newspapers were more likely than not drawing their
reports from documents like Leader’s statement to Hollingshead.
All the same, Leader’s account of the events makes interesting reading.
First, Leader revealed that he was but a few feet from the incident, allowing
him to overhear Brooks’ remarks and observe first-hand what followed.
Second, Leader reported that Brooks began to strike before he completed the
last sentence of his declaration. Third, Sumner did not attempt to rise to
“defend himself,” but only attempted to evade the blows. Fourth, Sumner
was already on the ground having dislodged his desk when Brooks broke his
cane on him. Fifth, Leader noted, “a number of persons gathered around,
crying, ‘Don’t interfere!’ ‘Go it, Brooks!’ ‘Give the damned Abolitionists
hell!.’” Sixth, it was Crittenden who first got to Brooks and restrained him
from further violence. Seventh, Leader claimed not to know Sumner and “as
we belonged to different political parties, I had no prejudice in his favor.” He
summarized his assessment of the proceedings as “the most cold-blooded,
high-handed outrages ever committed,” and concluded that had Sumner not
been “a very large and powerfully built man, it must have resulted in his
death.”44 It seems clear from this view a clear cut case of assault and battery
with aggravating circumstances (the use of a weapon).
After his arrest, Brooks spent little to no time in jail. He was
immediately freed on $500 bail. But the grand jury indicted him, and he
faced a bench trial before Judge Thomas H. Crawford of the Circuit Court
44. IV CHARLES SUMNER, THE WORKS
eds., 1875).
OF
CHARLES SUMNER 267–70 (Lee & Shepard
2013]
THE CANING OF CHARLES SUMNER
535
for the District of Columbia. Following a very brief hearing, on July 8,
Crawford sentenced Brooks to a $300 fine. The light sentence, with no
incarceration, caused a new wave of outrage among Sumner’s sympathizers.
Had the court simply vindicated the honor culture? The law can be a mystery
unless one looks closely at its operations.
The outcome of a trial is the result of several factors including the
provisions under which one is prosecuted, the effectiveness of the
prosecutor, the judge’s rulings, and the effectiveness of one’s defense.
Without getting into an intensive analysis of the antebellum American
criminal justice system, there are a few observations that come to mind. First
and foremost is the fact that laws reflect the values of societies. The societies
of Washington D.C. and Maryland produced the laws governing this trial. As
noted above, it was an area very friendly to, if not entirely stemming from,
the honor culture of the slaveholding South. Second, much depended on the
conduct of the prosecutor. The prosecutor did not represent Sumner, the
alleged victim. The prosecutor, in this case the U.S. Attorney for
Washington, D.C., represented the government, or, as it was commonly
phrased, the people.
Brooks was most fortunate in this regard because the U.S. Attorney was
a presidential appointment and the president, Franklin Pierce, no friend of
Sumner, had appointed Maryland Democrat Philip Barton Key.45 Barton, as
he was known in Washington’s best circles, was as close as one could be to
D.C. royalty. His father, more noted as the author of “The Star Spangled
Banner,” Francis Scott Key, was the U.S. Attorney for Washington under
President Jackson. Barton’s sister was the belle of D.C. society and the wife
of Representative George H. Pendleton, Democrat from Ohio, who, as a
senator in 1882, would author the Civil Service Act which bears his name.
His uncle, the husband of his father’s sister, was Chief Justice Roger B.
Taney, who was then in the twentieth year of what would be the second
longest term as chief justice. Taney’s “self-inflicted wound” in Dred Scott v.
Sanford46—Congress could not bar slavery from the territories and
Americans of African ancestry could never be citizens—lay in the future, but
the chief justice had already proved himself a good friend to the slave power.
45. For information on both Francis Barton Key, the prosecutor in the Brooks trial, and
Thomas H. Crawford, the judge in the trial, see NAT BRANDT, THE CONGRESSMAN WHO GOT
AWAY WITH MURDER (1991); THOMAS KENEALLY, AMERICAN SCOUNDREL: THE LIFE OF THE
NOTORIOUS CIVIL WAR GENERAL DAN SICKLES (2002); W. A. SWANBERG, SICKLES THE
INCREDIBLE (2004); JOSEPHINE PACHECO, THE PEARL: A FAILED SLAVE ESCAPE ON THE
POTOMAC (2005).
46. 60 U.S. 393 (1857).
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Barton himself was the dashing, womanizing, and states’ rights
Democratic darling of D.C. He was better known for his dancing,
conversation, and the figure he cut riding his horse, Lucifer, than his
attention to his duties at the office. It was Key’s decision not to charge
Brooks with a more serious offense. It was also Key’s choice not to
challenge Brooks’ speech on his own behalf. Finally, Key chose to read into
evidence the letters he and Sumner had exchanged on why Sumner could not
be present in the court to give his testimony. Although Key may have been
legitimately trying to excuse Sumner’s absence and demonstrate his own due
diligence, it was a tactical blunder in that it made it look like Sumner was
feigning incapacity. Doctors Boyle and Lindsay’s testimony alongside that of
the other eyewitnesses including Leader, however, should have been more
than enough to allay that suspicion. One suspects Key’s motives in such an
affair—an affair in which he had no sympathy for the victim and great
admiration for the defendant.
After the farcical trial of Brooks, Key gained infamy as the unsuccessful
prosecutor of California Representative Philemon T. Herbert for killing an
Irish waiter by the name of Thomas Keating at the popular Willard’s Hotel.
Key made little effort to produce witnesses for the prosecution to show that
Keating was not armed when Herbert had instigated the struggle, a struggle
that led to Herbert shooting Keating. But Key’s most infamous role came on
February 27, 1859. Then he played the murder victim of Congressman
“Dangerous” Dan Sickles. In what may be poetic justice, the jury would
acquit Sickles of all charges because Sickles pleaded temporary insanity. He
found Key signaling to Sickles’ wife, Teresa, outside their Washington
house, apparently in an attempt to see if the house was clear for an
assignation. In another coincidence, the presiding judge in the trial was none
other than Thomas H. Crawford, the judge in Brooks’ trial. He, too, played
his customary role, giving favorable rulings for Sickles’ defense of
“irresistible impulse.”
Brooks also had a very effective defense team at his trial. In addition to
his primary counsel, John A. Linton, he also had James L. Orr to represent
him. Toombs and Senator Judah P. Benjamin of Louisiana testified for the
defense. Toombs read portions of the “Crime Against Kansas Speech”—out
of context—that demeaned Butler and South Carolina. Benjamin asserted
that copies of the speech were printed beforehand, suggesting that Sumner
was the culprit of a premeditated offense. How the passages of the speech
were relevant as a defense or that publication in advance somehow excused
Brooks is unclear, unless Brooks wanted to anticipate Sickles’ defense of
temporary insanity. And Brooks wanted none of that. What was more, both
Toombs and Benjamin sought political capital rather than evidentiary clarity.
2013]
THE CANING OF CHARLES SUMNER
537
In effect, they were riding Brooks’s popular coattails to reelection in their
own states.
Brooks concluded the defense’s presentation with his own speech. As
this was a bench trial, he need only appeal to Judge Crawford’s sense of the
law. There was no jury to sway. A Polk appointee to the Circuit Court of the
District of Columbia, he was a Jacksonian Democrat, a graduate of
Princeton, a two-term Congressman from Pennsylvania, a former
Commissioner of Indian Affairs, and had been on the court since 1845.
Brooks knew that Crawford was a “doughface”—a southern leaning
northerner—from his role in the case of the Pearl. The Pearl was a slave ship
marooned in D.C. after the slaves had attempted to commandeer her.47 For
Crawford apparently believed that color alone determined whether a man
was a slave.
Brooks began by lamenting Sumner’s absence from the proceedings—a
wink, wink, nod, nod reference to the supposed seriousness of his injuries.
Brooks contended that the first blow was “but a tap, and intended to put him
on his guard,” as opposed to Sumner’s contention that the first blow
“stunned” him “so as to lose sight.” Brooks spent the vast majority of the rest
of statement on the notion that some acts that violate laws are nevertheless
not appropriate for punishment. “So also are those cases which may fall
under the condemnation of the letter of the law, and yet like considerations
will restrain its penalties.” He declared his premeditated bludgeoning a
matter of “feeling” that was not covered by the “reasoning” of law. It would
be unjust to punish him severely for what was natural. “Will it be required
that I, with a heart to feel and an arm to strike, shall patiently hear and
ignobly submit while my political mother is covered with insult and obloquy,
and dishonor? While her character is slandered, and her reputation
libeled?”48
In some respects Brooks was using an excuse for crime known as
“irresistible impulse” or crime of passion. Under this doctrine if someone
acted in the heat of the moment driven by an emotional response that could
not be controlled, he or she did not have the requisite control over his or her
actions required to form intent. Intent is the state of mind necessary to be
held responsible for one’s actions. Just as we would not find that an arm
moved by gravity is under the control of the person to whom it is attached,
47. See generally JOSEPHINE F. PACHECO, THE PEARL: A FAILED SLAVE ESCAPE ON THE
POTOMAC (2005); MARY KAY RICKS, ESCAPE ON THE PEARL: THE HEROIC BID FOR FREEDOM
ON THE UNDERGROUND RAILROAD (2007).
48. Brooks’ Defense of Himself, N.Y. TIMES, July 10, 1856.
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we would not find Brooks responsible for actions driven by human responses
beyond his control. The most frequently used example of this defense is
when a spouse finds his or her partner in a sexual act with another and harms
one or both of them. Unfortunately for Brooks’ use of irresistible impulse as
a defense, he had read the speech the day before the assault. This was more
than enough to constitute the “cooling off period” that vitiates the irresistible
impulse defense.
Crawford pronounced the sentence of the court without comment on the
evidence as “this matter will be within a short time the subject of
investigation in another place,” probably referring to the House
investigation.49 Crawford seemed to think anything the House would decide
would be more appropriate than his own decision, a strange opinion for a
judge to render. To all accounts Brooks paid his fine of $300 and walked
free. The justice system of 1856 had rendered its verdict and it favored the
defendant from the honor-bound South.
The caning of Charles Sumner was not just a cultural clash between two
men, Massachusetts and South Carolina, Republican and Democrat, North
and South, or even Harvard and the University of South Carolina. It was a
conflict of two different views of the Constitution. For Brooks and the
Democrats of the day, the Constitution was a compact among the states, of
limited powers except when it came to fugitive slaves, and a guarantee of
individual liberties especially the right to property. For Sumner and many of
the Republicans of that time, the Constitution formed a national government
from the consent of the people. It was an instrument for their will and a
guarantee of individual rights for all people.
The Civil War led to three amendments to the U.S. Constitution and a
bevy of legislation altering the nature of the Union forever and ending
slavery, but these divergent views of our basic law live on, oddly enough,
with the political parties having exchanged positions to a degree. Brooks
would probably feel more at home in the states’ rights Republican Party of
John Boehner, Mitch McConnell, and Joe Wilson, representing Brooks’
district, of “You lie!” fame. Sumner would fit right in to the Democratic
Party of Barack Obama and Nancy Pelosi. Regardless of this slightly tongue
in cheek observation, we have much to learn from the crisis of the 1850s
both as a warning about civility in our national discourse and a constitutional
debacle worthy of further study.
Rather than being a way to channel political discourse through the
mechanism of law, the Constitution of the 1850s created a boiling cauldron
49. Id.
2013]
THE CANING OF CHARLES SUMNER
539
of ever-escalating tensions, apprehensions, and faction that the court system
only aided and abetted. The House investigation and votes along partisan
lines, the criminal trial, and the political process themselves were all the
results of a Constitution fomenting division rather than healing it. Lincoln
could well analogize the structure to a house divided against itself, and
predict the outcome. In our present day of political tensions, fractiousness,
and a disturbing growth in dissatisfaction among the public, we might well
wonder whether the Constitution requires our attention as much as it did in
the 1850s.