Chapter 5

A “Moral Insurrection of Thought:” Compacts, Higher Laws, Disobedience, and Water Lilies in Antebellum

Boston

The view taken of Transcendentalism in State Street is that it threatens to invalidate contracts.—Ralph Waldo Emerson1

The difficulty in business here is greatly increased by the bold and reckless spirit of reform which urges to the cutting off a man’s head under the plan of saving his life by the operation. The immediate effect of this beheading doctrine is to prevent new contracts.

—Amos A. Lawrence, Boston textile manufacturer2

By 1850, two years after the European revolutions, an astute observer noticed that

Americans were dividing up, not only into political and sectional camps, but also into

dueling ideas of ethical responsibility, warring “classes of consciences”; the first, “a LAW-

ABIDING conscience—the other, a HIGHER LAW conscience… each repudiating and

violently denouncing the other.”3 Scholars have long noted that abolitionists used a rhetoric

that celebrated a higher law above the man-made Constitution, part of the origin of a civil-

disobedience tradition in American life. Astonishingly, historians have ignored the

particular context of the development of this idea. The full elaboration of the higher-law

ethos was the product of an intellectual collaboration between Transcendentalists, black

activists, and radical abolitionists. In a dramatic case of how abolitionist rhetoric influenced

American literature, Thoreau named a chapter of Walden “Higher Laws.” Yet historians

1 Ralph Waldo Emerson, Ralph Waldo Emerson: The Selected Journals: 1841-1877, ed. Lawrence Rosenwald (New York: The Library of America, 2010), 42. 2 Quoted in Caroline Ware, The Early New England Cotton Manufacture: A Study in Industrial Beginnings (Boston: Houghton Mifflin, 1933), 105. 3 Rev. Samuel T. Spear, The Law Abiding Conscience and the Higher Law Conscience with Remarks on the Fugitive Slave Question (New York: Lambert and Lane, 1850), 6.

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have generally ignored these clear intellectual links between higher-law rhetoric among

antislavery activists and higher-law rhetoric among Transcendentalists.4 They have also

missed how black intellectuals pushed their white allies to take stronger stances on

following the higher law, politicizing and radicalizing its meaning.

In Boston, the enactment of the Fugitive Slave Law engendered a massive and

intellectually fascinating debate about laws, moral conscience, and contracts. As Ralph

Waldo Emerson wrote, the law has “been a university to the entire people. It has turned

every dinner-table into a debating club, and made every citizen a student of natural law.”5

4 The one exception, maybe, being Stanley Elkins, who disliked both Transcendentalism and abolitionism. Stanley Elkins, Slavery: A Problem in American Institutional and Intellectual Life (Chicago: University of Chicago, 1959).5 Quoted in Barbara Packer, The Transcendentalists (Athens: University of Georgia Press, 2007), 223. Emerson was certainly correct that the passage of the Fugitive Slave Law created a massive outflow of popular political polemics debating the ethics of violating the law. Many of these were sermons were later printed up into pamphlets. A small sampling of the radical arguments in these pamphlet wars would includes: A.P Marvin, of Winchendon, MA, who argued in “Fugitive Slaves: A Sermon” the radical position that “we are forbidden to enter into any compact, and to fulfill any engagement which is a violation of” moral law; J.G. Forman of West Bridgewater, MA, who lost his ministry because he compared Northerners who protected fugitive slaves to persecuted Christians martyred by the Romans; and L.H. Sheldon of Townshed, MA who argued that anyone who “regulates his conduct by principles in open conflict with the word of eternal truth, is a practical atheist.” Conservative pamphlets and speeches were split between a reactionary position that defended the divine right of governmental authority and a more moderate position that simply defended the fugitive slave law on Constitutional grounds. For the “divine right” position, there was William Lunt, from Quincy, MA, who argued in “The Divine Right of Government” that “there must of necessity be some limits beyond which the freedom of the individual shall be restrained”; whereas Samuel Barrett’s 1851 sermon “A Discourse,” defended the law from a patriotic and constitutional perspective. In the middle were voices like Otis Skinner, of the Warren Street Church in Boston, who argued that men could violate a law they disliked, but distanced themselves from abolitionists by arguing that citizens should only offer passive refusal to obey the law, not any active resistance or violation of personal oaths to the contrary. Those arguments turned into pamphlets were almost certainly a minority of sermons given on the topic. For instance, Whig politician Charles T. Russell noted in his diary that his preacher, Mr. Richards, “vindicated the supreme claims of the ‘higher law,’ but thought that obedience to law could be brought within it,” in his journal entry for November 24, 1850. A.P. Marvin, Fugitive Slaves: A Sermon, Preached in the North Congregational Church, Winchendon, on the Day of the Annual Fast, April 11, 1850

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It was only in the context of this debate during the watershed year of 1850 that the full

meaning of the higher law and civil disobedience took shape. On one side were Daniel

Webster, his fellow Cotton Whigs, and the Boston business community represented by the

Boston Associates, who emphasized the importance of contracts and procedural

democracy, the “law-abiding conscience.” Their embrace of this argument itself signaled a

change in intellectual outlook for conservative Boston. On the other side were Boston’s

radicals, who were driven by the Fugitive Slave Act to form the Boston Vigilance

Committee. Inspired by black activists and intellectuals, as well as the long trails of

Transcendentalism, they argued that no one could sign away his or her conscience, and that

an individual’s relationship to the higher law—a law that had a dual meaning, implying

both the duty to break unjust laws, and the Romantic need to live an elevated and

spiritually meaningful life—superseded laws and contracts made by men. Their rejection

of the logic of contracts demonstrated their move away from a bourgeois market-oriented

style of thought.

The Conservative Case for Compromise

(Boston: John P. Jewett, 1850), 8; J.G. Forman, The Christian Martyrs; Or the Conditions of Obedience to the Civil Government (Boston: Wm. Crosby and H.P. Nichols, 1851); L.H. Sheldon, The Moral Responsibility of the Citizen and Nation in Respect to the Fugitive Slave Bill (Andover: J.D. Flagg, 1851), 4; William Lunt, The Divine Right of Government: A Discourse Delivered in Quincy, Massachusetts, on the Day of the Annual State Fast, April 10, 1851, (Boston: Wm. Crosby and H.P. Nichols, 1851), 11; Samuel Barrett, A Discourse Delivered in the Twelth Congregational Church, Boston, on Fast Day, April 10, 1851 (Boston: Eastburn’s Press, 1851); Otis A. Skinner, Duty to Government and to God: A Sermon Preached in the Warren Street Church, Boston on Thanksgiving Day, November 29, 1850, and Repeated by Request in the Same Church, December 15, 1850 (Boston: A. Tompkins, 1851); “entry for November 24, 1850,” Diary of Charles Theodore Russell, vol. 1, 1849-1853, Bostonian Society, Boston Massachusetts.

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Expectations were high when Daniel Webster, Massachusetts’s most distinguished

politician, finally addressed the Senate on March 7, 1850, to discuss recently proposed

legislation that attempted to solve the sectional divide. Earlier that year, Webster’s fellow

Whig Henry Clay had begun negotiating what would be his last major compromise: an

omnibus bill that would allow for the settlement and organization of the territories won in

the recent Mexican War. With Southern fire-eaters meeting in Nashville to discuss

secession, the threat to the nation seemed real and immediate to Webster. Central to Clay’s

compromise was an act to strengthen enforcement of Section 2, Article 4 of the Constitution,

which mandated the rendition of any “Person held to Service or Labour in one State” who

escaped to another state—requiring, in other words, that even free states return fugitive

slaves to their owners. Soon known as the Fugitive Slave Act, Clay’s original proposal

increased federal authority and gave individual slave owners more options to recapture

fugitives, helping to appease Southern slaveowners who were livid that Northerners

sheltered their run-away “property.”

The Senate met at an earlier than usual hour. The galleries were full, and the

corridors were so crowded that “it was with difficulty that the members themselves were

able to force their way to their seats.”6 Rising to speak, the imperious and calculating

Webster attempted to weave between the hardening pro-slavery sentiment coming from his

old nemesis John Calhoun, and the rising antislavery activism of his home state. Like his

friend Henry Clay, Webster was an “ideologue of the center,” condemning on both sides

“men with whom every thing is absolute; absolutely wrong, or absolutely right.”7 Quoting

6 Daniel Webster, The Great Speeches and Orations of Daniel Webster (Boston: Little, Brown, 1886), 600.7 Webster, Great Speeches and Orations, 604; the phrase “ideologue of the center” comes from Daniel Walker Howe’s interpretation of Henry Clay. Daniel Walker Howe, The Political Culture of the American Whigs (Chicago: University of Chicago Press, 1979),

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from historical works and statistical reports, Webster described the growing importance of

cotton and slavery in the South, the ensuing rise of pro-slavery ideology, and sectional

tension.

On the central questions, however, Webster sided with Clay’s compromise.

Abolitionists at the time argued that this was an attempt to mollify moderate Southern

opinion in preparation for a presidential run. Whatever the cause, Webster vehemently

attacked Northerners who refused to return fugitive slaves. They were “unwilling to perform

fully their constitutional duties in regard to the return of persons bound in service…. Every

member of every Northern legislature is bound by oath, to support the Constitution of the

United States; and the article of the Constitution which says to these States that they shall

deliver up fugitives.”8 The South, Webster acknowledged, had a legitimate complaint that

their constitutional rights were being trampled on by Northerners. Webster, it should be

remembered, had long believed that government existed largely to protect property rights,

and although he claimed to dislike slavery personally, he always acknowledged Southern

whites’ right to their property.

In elementary form, nearly all the arguments that would be deployed by Northern

conservatives in the ensuing months appeared in Webster’s speech: the full-throated defense

of the Union, the fetishism of the Constitution, the preference for the property rights of

masters over the natural rights of slaves, and the North’s contractual obligations to the

South. Webster had such influence over the Whig party in Massachusetts that jealous

members privately complained of “high Websterism,” a sort of political dogmatism that

seemed to infect many Whigs, while political opponents would soon talk of the

123-149.8 Webster, Great Speeches and Orations, 617.

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“Websterization” of the whole Whig Party.9 His principles, though, especially in the debate

around the Fugitive Slave Act, were hardly uncontroversial. Rarely have political debates

forced participants to articulate their first principles as much as the debate over the Fugitive

Slave Law did. Most important here was the role of the Constitution and contracts in moral

debate.

Back home, the reaction to Webster’s speech was explosive. Years later,

abolitionists would continue to remember it as a uniquely heinous betrayal. When Webster’s

name or the Fugitive Slave Law became too horrible even to mention, they referred to it, as

Wendell Phillips did on the eve of the Civil War, simply as the “great treason of the 7th of

March, 1850.”10 To antislavery New England, Webster was a hunker, a traitor, and a

prostitute. Emerson, who became obsessed with the law, vented to his journal that “the word

liberty in the mouth of Mr. Webster sounds like the word love in the mouth of a

courtezan.”11 The Liberator ran a special edition with a full printing of Webster’s speech,

followed by the declaration that Webster “has betrayed the cause of liberty, bent his supple

knees anew to the Slave Power, and dishonored the State.”12 Days later, on March 25, an

overflowing crowd protested at Faneuil Hall. In his journal, the Transcendentalist A.

Bronson Alcott, described the speeches there as “eloquent for freedom and humanity, and

expressed the sentiment of the freemen of New England.”13 Theodore Parker told the

audience that the actions of Webster, Clay, and the others were “such as you might look for

9 See “entry for August 20, 1851,” Diary of Charles T. Russell, vol. 1, Bostonian Society, Boston, Massachusetts. Russell was a railroad lawyer and Whig State Senator, and moderately (if privately) antislavery. “The Websterization of the Whig Party, Commonwealth and Emancipator, May 10, 1851. 10 Wendell Phillips, Speeches, Lectures, and Letters (Boston: James Redpath, 1863), 256. 11 Emerson, Selected Journals, 553.12 “Let the People Speak,” Liberator, March 15, 1850. 13 A. Bronson Alcott, The Journals of Bronson Alcott, ed. Odell Shepard (Boston: Little and Brown, 1938), 230.

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in the politicians of Austria and Russia”—the bastions of reactionary absolutism in the

Revolutions of 1848—and dismantled Webster’s logic piece by piece. Parker’s speech was

learned and intricate, but a bit pedantic (the printed version contained long legal citations),

he had not yet developed the strong philosophical critique of the law that he soon would.

Samuel Ringgold Ward, the black editor, spoke next and was far more explicit. “I pledge

you there is one [black man], whose name is Sam Ward, who will never be taken alive,”

Ward thundered to “tremendous applause.” Finally Ward brought down the house by

declaring that “crises as these leave us to the right of Revolution, and, if need be, that right

we will, at whatever cost, most sacredly maintain.”14 Two days later, black activists held an

“anti-Webster” meeting, in which they cursed his “treachery to freedom,” until the meeting

dissolved into a “war of words” over whether to use violence in self-defense. The consensus,

the Liberator reported, was that “in the struggle for Liberty or Death, each would act as in

his judgment the emergency demanded.”15

White and black abolitionists had both declared their willingness to disobey the law

(though, characteristically, the black speakers did so more openly). On March 11, just days

after Webster’s speech, New York Senator William Seward criticized Webster’s approach,

declaring, in soon-to-be famous words, that there was a “higher law” above the Constitution.

Webster’s natural allies, the Massachusetts Whigs, took a bit longer to come around to their

position and many prominent Whigs at first withheld their support.16 In his journal,

14 “Speech of Rev. Samuel R. Ward,” Liberator, April 5, 1850.15William C. Nell, William Cooper Nell: Nineteenth Century African American Abolitionist, Historian, Integrationist: Selected Writings From 1832-1874, eds. Dorothy Porter Wesley and Constance Porter Uzelac (Baltimore: Black Classic Press, 2002), 258-59. 16 William Hartford, Money, Moral, and Politics: Massachusetts in the Age of the Boston Associates (Boston: Northeastern University, 2001), 152.

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Massachusetts Whig legislator Charles Russell complained that, though he respected the

Senator, he did “not like the tone nor the sentiments of Mr. Webster.”17

Soon, however, the Boston Associates and their Cotton Whig allies began organizing

a defense of Webster. Eight hundred prominent citizens—among them Boston Associates

and their trusted allies, men like William Appleton, Rufus Choate, and Benjamin Curtis—

signed an open letter in his defense in the conservative Boston Daily Advertiser.18 When

Webster arrived in Boston later in April, a crowd of prominent citizens led by Benjamin

Curtis met him at his hotel, the posh Revere House in Bowdoin Square. Addressing the

crowd, Webster again defended the Constitutional necessity of returning fugitive slaves.

Acknowledging that the return of fugitive slaves was “disagreeable” to Northerners,

Webster nevertheless called on Massachusetts to “conquer her prejudices” and perform the

unpleasant duty. He ended his speech by hoping to preserve a Union that, he declared, was

“not merely a union of law, of constitution, of compact; but while it is that; it is a union of

brotherly regard.”19

Support for Webster’s argument was also shored up when the influential Boston

Daily Advertiser began a steady drumbeat of articles defending Webster’s position. The

most important of these was the March 23 article, “Mr. Webster as Senator,” which further

articulated the themes that conservatives would defend. Webster, the piece argued, had taken

an oath so that he was “a servant of the Constitution of the United States, and nothing else.”

His own moral or ethical qualms could not be considered, only the words of the

17Entry for March 24, 1850, Diary of Charles T. Russell, vol. 1, Bostonian Society, Boston, Massachusetts. 18 “Approval of the Speech!” Liberator, April 12, 1850. 19 Benjamin Curtis, The Memoir of Benjamin R Curtis with some Professional and Miscellaneous Writings edited by His Son Benjamin R. Curtis, ed. Benjamin Curtis (Boston: Little, Brown, 1879), 120.

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Constitution. Theodore Parker and others would later call this the logic of “tools,” who had

abandoned their moral agency, rather than the work of morally independent “men.” But, the

Advertiser continued, despite the antislavery nature of Northern public opinion, Bostonians

were still held to the original terms of the compact made with the South regarding fugitive

slaves. Unless, the Advertiser taunted abolitionists, they wanted to resort to the right of

revolution, they had no ground on which to criticize the proposed Fugitive Slave Law. 20

Webster came out of a conservative Whig tradition that had a long and complicated

relationship towards social contract theory, generally rejecting it in favor of a Burkean

emphasis on organic communities. Drawing on Edmund Burke’s writing on the French

Revolution, as well as Scottish Enlightenment thinkers like Adam Ferguson, Boston’s

conservative establishment looked back at the organic relationship between the past and

present of the community, seeing individuals as necessarily part of a pre-existing matrix of

traditions, interdependencies, and institutions—what Cotton Whig Rufus Choate called “our

organic forms, our civil and social order.”21 The state, and the laws it enacted, represented a

profound moral obligation, much like a family, as it tied individuals to the very community

that was necessary for their protection and development.

This had led to a certain skepticism, if not outright hostility, to the political

philosophy of canonical liberal thinkers, who had based their respect for law on the

supposed prudence and consent of individual actors forming a social bond of their own

choosing. As Francis Bowen, Harvard’s ultra-conservative Alford Professor of Moral

Philosophy, wrote in an 1842 essay, “we need… a more solid foundation for the authority of

20 “Mr. Webster as a Senator,” Boston Weekly Messenger, March 27, 1850. 21 Quoted in Howe, Political Culture of the American Whigs, 229.

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the state, than a mere bargain between it and its subjects.”22 In practical terms this meant

that, at least in terms of nationalism, conservatives tended to play down the idea of social

compacts and instead saw the origins of the American nation in shared history and affection.

Daniel Webster, in his revealingly named speech, “The Constitution not a Compact,” had

held that “the United States had already been in a union, more or less close, for fifteen

years” before the 1789 signing of the Constitution.23 It was Jacksonian Democrats, never

dominant in Massachusetts, who tended to view society more as a contract among free

individuals.

This skepticism of social-contract theory, however, co-existed awkwardly with

conservative veneration of the Constitution, which appeared, after all, awfully like a social

contract. Webster and the Whigs may not have believed that the Constitution was the

moment when America as a national community came into being, but they did see the

Constitution as the basic and necessary authority for all American law. After all, did not the

Constitution represent the history and authority of past usage, sacred things for the

Burkeans? For Rufus Choate, whose legal thinking was extraordinarily influential among

Cotton Whigs, the tension was a real problem. Choate solved this by acknowledging the

contractual basis of American nationhood, but by hoping this contract would be ignored,

hidden with a “politic, well-wrought veil,” a sort of noble lie that obscured the contractual

history.24 For others, especially Webster himself, the original contract was made; it was a

22 See Daniel Walker Howe, The Unitarian Conscience: Harvard Moral Philosophy, 1805-1861 (Cambridge, MA: Harvard University Press 1970, 124; also 309-310 on Bowen.23 Daniel Webster, The Constitution not a Compact Between Sovereign States: A Speech by the Hon. Daniel Webster, In the Senate of the United States, Jan, 1833, in Reply to the Resolutions Offered by Mr. Calhoun, of South Carolina, Affirming the Right of Secession (New York: Bergen and Tripp, 1861), 5.24 Howe, Political Culture of the American Whigs, 228.

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historical event that had happened, but that now presented a series of moral duties

incumbent upon modern Americans. The conservatives’ celebration of historical duties, of

communal ties to the past, and acceptance of power as given (“prescription”), were all

profoundly influenced by their readings of Edmund Burke. The Constitution mattered less as

the particular event in which American society came into being, and more as one moment

among many in which Americans made and re-affirmed moral commitments to one another.

Their sentimental attachment to the Union and to the Burkean community it represented

contradicted the otherwise liberal tendencies of their instrumental rationality.

As the debate over the Fugitive Slave Law progressed, conservatives increasingly

emphasized the contractual nature of law, embracing a theory of government based on a

social contract, much as Locke, Hobbes, and other liberal theorists had suggested, and

understanding the Constitution more as a contract binding in concrete ways on Northerners.

The aspects of social contract theory that had appealed to conservatives—the sense of duty

to the past, obligation to others, and deference to given power—served as something of a

half-way point, easing them into their eventual embrace of liberal contract theory. By 1850,

as the debate heated up, conservatives began adopting the argument that the Constitution

had been a foundational compact between states, which limited what Americans could do

about slavery; simultaneously they began emphasizing the moral value of the personal oaths

that men had chosen to make to the state. The goals for the conservatives remained the same

—social stability, protection of the Union above all, and friendly trading with the South—

but the intellectual justification for it changed in tone. Relevant, too, is the fact that the

Cotton Whigs were moving politically closer to the conservative wing of the Democratic

Party—by 1856 most Cotton Whigs would vote for Buchanan, as the one candidate who

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could safely protect the Union—as they increasingly adopted the traditionally Democratic

position, which favored social contract theory. The Fugitive Slave debate, then, disentangled

their formerly contradictory thought, creating a consistently conservative form of liberalism,

based on market imperatives and instrumental thought.

The basis of the conservative defense of the compromise, and the explanation for

why Northerners were duty-bound to obey the Fugitive Slave Law, centered around the idea

that Americans had voluntarily entered into a contract—the Constitution—by which they all

benefited. This contract was made possible only by the provisions that demanded the return

of run-away slaves, and so Northerners would be inconsistent if they accepted the blessings

of the Constitution without accepting those ugly aspects that made it possible. This wasn’t

an entirely new argument. As early as 1843, for instance, George Ticknor (founder of the

Boston Public Library and a Harvard professor) criticized his fellow Northerners in a private

letter, because “we at the North do not enough remember that we made, by that same

Constitution, a special bargain with the Southern States, by which we left it [slavery]

entirely to them…we further promised to permit them to retake their slaves escaping into

our States.”25 In the wake of the Fugitive Slave Law, these issues became even more salient,

and the argument that the Constitution “contains an explicit contract, that… slaves, shall be

delivered up” became more common.26 A typical argument, made in 1850 by Boston’s

Cotton Whig Congressman, and compromise-supporter, Samuel A. Eliot, emphasized that

the roots of the Fugitive Slave Law were in the making of the Constitution. “Everybody saw

25 Ticknor was answering a British correspondent who had written asking his opinion on slavery. Ticknor revealed much about the conservative mindset when in the next paragraph he wrote, concerning slavery, “What, then, you will say,—nay, you do say it in your letter,-- what is to be done? I answer, WAIT.” George Ticknor, The Life, Letters, and Journals of George Ticknor (Boston: James Osgood, 1877), 2: 217.26 “Act for the Extradition of Slaves,” Boston Semi-Weekly Courier, October 14, 1850.

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and acknowledged that the union of these sovereign and independent States into one

government was the remedy, and the only remedy for the existing evils….But in order to

secure the existence of the institution to those States who preferred it, it was agreed that

persons escaping from labor to which they were bound in one Commonwealth, and found in

another, should be returned to the State from which they have fled.” 27

Conservatives began emphasizing that contracts were not just binding on states, but

also on individuals. A fascinating exchange between Theodore Parker and Benjamin Curtis

in dueling speeches in 1850 revealed the stakes. Parker, in good radical Transcendentalist

fashion, had argued that no individual gave up his “manhood” and individual moral agency

when he served on a jury. Since defending the weak and protecting slaves was a moral

responsibility for humans, jurors should always vote to free fugitives, regardless of what the

law said and what oath they had taken. It was, in fact, just such a renegade juror who

prevented black leader Lewis Hayden from being imprisoned after Hayden was arrested for

his part in freeing the fugitive slave Shadrach Minkins. Curtis, a Cotton Whig who would be

nominated to the Federal Supreme Court by Webster, of course disagreed, responding that

individuals had one relevant chance to make a moral decision: when they took the juror’s

oath. Like Webster choosing to abide by the Constitution, they had one opportunity to

exercise moral agency, after which they were bound by the terms of the system to which

they had agreed. For Parker, on the other hand no oath or contract could ever eliminate the

burden of moral responsibility that continued after the moment of contract. 28

27 “Samuel A. Eliot’s Letter, ” Daily Chronotype, October 31, 1850.28 See Curtis, Memoir of Benjamin R. Curtis, 125-126. For an excellent summary of the conflict between Curtis and Parker, and how they drew upon dueling conceptions of American law, see Dean Grodzins, “‘Slave Law’ versus ‘Lynch Law’ in Boston: Benjamin Robbins Curtis, Theodore Parker, and the Fugitive Slave Crisis, 1850-1855,” Massachusetts Historical Review 12, (2010): 1-33.

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Like all ideas, this intellectual defense of the Constitution as a social contract was

strongly rooted in a particular matrix of social and economic interests. Wendell Phillips

summed up the radical view of this economic interest well, when he caustically remarked

that the enforcement of the Fugitive Slave Law would determine whether “the mills of

Abbott Lawrence make him worth two million or one.”29 The perception was widespread,

and probably accurate, that, as Emerson put it, the “money power,” those like the Boston

Associates who profited from trade with the South, were the main supporters of the law in

the North.30 The fact that Webster was relying on financial support from Nathan Appleton

and other textile industrialists to finance his personal life, even as he fought for the Fugitive

Slave Act, only reinforced such suspicions.31

Surprisingly, though, conservatives openly acknowledged that their new-found

defense of the Constitution paralleled their economic interests. Samuel A. Eliot, the Whig

Congressman, defended the Compromise of 1850 by reminding an audience of why they had

needed the Constitution in the first place: the economic depression of the post-Revolution

years, which had driven down commodity prices.32 Fixing this evil, according to Eliot, was

the prime justification for the adoption of the Constitution, and for its continued protection.

Daniel Webster was even clearer. Thanking the “commercial classes” for their support of the

Compromise of 1850, he reminded the audience that the original impetus for the American

29 Quoted in Anne Farrow, Joel Lang, and Jennifer Frank, Complicity: How the North Promoted, Prolonged, and Profited from Slavery (New York: Ballantine Books, 2005), 37. 30 The full quotation reads: “The principle thing that occurs now is the might of the law which makes slaver the single topic of conversation in this Country. A great wrong is attempted to be done & the money power is engaged to do it.” Emerson, Selected Journals, 527.31 Robert Remini, Daniel Webster: The Man and his Times (New York: Norton, 1997), 200.32 “Samuel A. Eliot’s Letter,” Daily Chronotype, October 31, 1850.

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union had been “to create a government which should protect trade and commerce,” and saw

it as appropriate that merchants would now support the Union in its time of need. This was

hardly a surprising statement coming from a man who believed that “the great object of

government is the protection of property at home, and renown abroad,” and considered

merchants to be the best representatives for Boston. 33 Likewise the Boston Daily Post (one

of the papers of which Thoreau asked, “is there any dust which their conduct does not lick,

and make fouler still with its slime?”) claimed that the abolitionists were “breaking faith

with the compact that unites her with sister states” and were “doing substantial and growing

injury to her manufacturing, mechanical, commercial, and agricultural interests,” which, the

Post argued, had all been given a “life-giving power” by the constitutional union.34

Conservative Boston newspapers nervously reported on every account of Southerners

“excluding Northern goods from their purchases,” linking the threat with disunionism.35

Economic considerations contributed to conservative support of the Fugitive Slave

Act because of another, more recent, compact. This was the implied deal with Southern

Whigs over the tariff. New England businessmen had suffered from a classic crisis of

overproduction since the mid-1840s, as new factories, including the heavily capitalized mills

at Lawrence and Holyoke, produced more textiles than could be profitably absorbed by

American consumers. Manufacturers reported “overproduction and consequent low price of

33 “Daniel Webster’s Speech to the New York Deputation,” Daily Chorontype, November 21, 1850; in 1850 Webster declared that “When Boston has been represented by commercial men, she has always been better represented than at any other time.” Thomas O’Conner, Lords of the Loom: The Cotton Whigs and the Coming of the Civil War (New York: Scribner, 1968), 86.34 Henry David Thoreau, Collected Essays and Poems (New York: Library of America, 2001), 341; “Redemption of Massachusetts,” Boston Daily Post, October 11, 1855. For other examples of the conservative argument that the Constitution had been formed to promote trade and commerce, see J.C. Warren’s argument, reprinted in “The Great Union Anxious Meeting,” Daily Chronotype, November 27, 1850.35 “President Fillmore’s Letter,” Boston Semi-Weekly Courier, November 24, 1850.

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cotton fabrics notwithstanding the high price of cotton.”36 Hoping that a new round of

protection, replacing the 1846 free trade tariff, would keep out British imports, and thereby

relieve some of the stress, Cotton Whigs desperately pushed for new protection. Southern

Whigs, however, “will not give a single vote for the Tariff until this slavery business is

settled,” Daniel Webster reported.37 The Boston Daily Advertiser approvingly republished an

article that asked “how can the Northern States hope for or expect protection for their labor,

when unceasing war is waged upon a hundred millions of Southern property?”38 For

radicals, the intended pay-off for the Fugitive Slave Act sullied it all the more. The

Commonwealth and Emancipator, a Free Soil paper, charged Webster and his Whig allies

with “prostrat[ing] themselves in the dirt before the Moloch of Slavery,” in the “empty and

idle hope of an increased tariff to help them out of the difficulties in which they have

involved themselves by rash investments in new cotton factories which the demands of the

market did not require.”39

The new-found conservative appreciation for social contracts was not just abstract

political theory; it also began to foreshadow the Dred Scott decision by declaring African-

Americans, who were supposedly not part of the founding compact, as outsiders

undeserving of legal rights. Ironically it was Benjamin Curtis, who would resign from the

Supreme Court over the Dred Scott decision, who argued in a speech to a Boston pro-Union

meeting in 1850 that Massachusetts’s sovereignty at the time of the Constitution gave it two

undeniable rights: the right to enter into contracts with other states, and the right to

determine which foreigners it would allow to enter the state. Abolitionists, Curtis argued,

36 “The Eastern Cotton Mills,” Commonwealth and Emancipator, May 17, 1851. 37 Hartford, Money, Moral, and Politics, 159.38 “Protection to Northern and Southern Labor,” Boston Weekly Messenger, October 16, 1850. 39 “Madness of the Webster Whigs,” Commonwealth and Emancipator, January 18, 1851.

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wanted to deny both of these rights, first by disobeying the clauses demanding the rendition

of fugitive slaves (which necessarily followed from their right to form a compact with

Southern states), and also by welcoming in fugitives. “With the rights of those persons

[fugitive slaves] I firmly believe Massachusetts has nothing to do,” Curtis wrote. “Our peace

and safety they have no right to invade; whether they come as fugitives, and being here act

as rebels against our law, or come as armed invaders.”40 Since they were not members of the

original compact, fugitive slaves were unprotected outsiders, Curtis argued. Curtis’ brother,

George Ticknor Curtis, would make a similar argument in an 1854 pamphlet, arguing that

the soil of Massachusetts was “consecrated” to freedom, but not the freedom of “men, who

are made by the Constitution of the United States incapable of acquiring freedom by coming

within our jurisdiction.”41

Abolitionists versus Contract Theory

Throughout the spring and summer of 1850, the conservative argument appeared to

be making headway. In New York, Garrison, Frederick Douglass, and Samuel Ringgold

Ward were mobbed at a meeting by Captain Rynder, the populist Five Points leader, and his

followers. All the victories that abolitionists had achieved to protect their free speech and

assembly rights, the antislavery poet John Greenleaf Whittier worried, were threatened.

“The signal has been given at Washington,” he wrote to Garrison, “and commercial cupidity

40 To be fair to Curtis, he apparently reversed his opinion about this by 1857. In his dissent he argued that because many African-Americans could vote at the time of the founding, they were considered citizens and thus entitled to the basic rights of Federal citizenship. Curtis, Memoir of Benjamin R. Curtis, 129-30.41 George T. Curtis, Observations on The Rev. Dr. Gannett’s Sermon Entitled “Relation of the North to Slavery” (Boston: Redding, 1854), 13.

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at the North is once more marshalling its mobs against us.”42 Despite Clay and Webster’s

best efforts, however, the compromise was stalled, unable to pass the Senate with President

Zachary Taylor clearly skeptical of the efforts. While the political scene remained murky,

abolitionists continued to prepare. Their strategy called for “a Hundred Conventions”

throughout New England, for the purpose of reminding all of “the duty of the people of the

North to refuse assistance in the rendition of fugitive slaves.” Stretched thin, Garrison

increasingly invited Transcendentalists, including Parker, Caleb Stetson, and John Weiss, to

address these conventions, helping to cement the alliance.43

On July 9, in one of the unexpected twists of American history, President Taylor,

who had been threatening to veto any measure that was so friendly to slavery, suddenly died,

replaced by the more compromise-friendly Millard Fillmore. Taylor’s death, an event of

often-ignored importance, shifted momentum away from free-labor Whigs and antislavery

Democrats and towards nationalist Democrats, Cotton Whigs, and the South. Henry Clay

took a back seat while a new generation, led by Stephen Douglas, engineered the final

compromise. Rather than try to pass an omnibus bill, Douglas split it into five separate bills,

each of which passed with a different coalition of moderate supporters. Unfortunately for

Northern blacks, these maneuvers ended up stripping the provision that had protected the

right to a jury trial for those accused of being fugitive slaves. Most of Massachusetts’s

delegation, including Webster in the Senate and Eliot in the House, still voted for the

Fugitive Slave Act, which passed in September.

42John Greenleaf Whittier, The Letters of John Greenleaf Whittier, ed. John Pickard (Cambridge, MA: The Belknap Press of Harvard University, 1975), 2:155.43 For a list of speakers see William Lloyd Garrison to Samuel May, July 16, 1850 in The Letters of William Lloyd Garrison: 1850-1860: From Disunionism to the Brink of War, eds. William Merrill and Louis Ruchames (Cambridge, MA: Belknap Press of Harvard University Press, 1975), 4:30-33.

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Throughout the commercial cities of the North, celebrations were held for the

preservation of the Union. The ostentatious displays of patriotism, though, couldn’t quite

conceal the growing unrest. As soon as news of the law’s passing had reached Boston, black

residents called an emergency meeting. Led by the charismatic militant Lewis Hayden,

Boston’s blacks pledged disobedience to the law and resolved, borrowing a quotation from

Lord Byron, that “they who would be free must themselves strike the blow.”44 A week later,

Hayden led an even larger meeting in which black activists formally constituted themselves

as an organization dedicated to resisting the law. Garrison, in the audience, attempted but

failed to convince the audience to promise non-violence. Instead the overwhelming mood

was militant. Joshua Smith, a black caterer, advised the crowd to sell their coats in order to

buy pistols, and other speakers warmly declared themselves “Rebels.”45

Alongside this political organizing, radicals were beginning to articulate a coherent

criticism of the conservative position. Influenced by Transcendentalism, they were skeptical

of any argument so rooted in history, contingency, and man-made institutions, especially

when those considerations seemed to prevent individuals from living by the more noble

standards of their conscience. Radicals pointed out that contracts could be drawn up between

immoral men for immoral purposes. Black intellectuals had extraordinary influence on the

question of legal ethics, having helped to develop a theory and praxis of civil disobedience

long before Thoreau’s famous arguments. Underlying all of these radical criticisms was the

contrast drawn between the individual conscience and whatever social and historical forces

were embodied in law or traditions. As William Lloyd Garrison had declared, “Man is

44 “Meeting of the Colored Citizens,” Liberator, October 4, 1850.45 Bruce Laurie, Beyond Garrison: Antislavery and Social Reform (New York: Cambridge University Press, 2005), 234-35.

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superior to all political compacts, all governmental arrangements, all religious

institutions.”46

Black radicals, because of their lived experience on the margins of antebellum

society, had long believed that certain laws—that threatened their freedom and the safety of

their friends and family—should be disobeyed.47 Significantly, then, long before white

thinkers began questioning, in the abstract, whether all laws ought to be obeyed, black

activists in Boston had acted in disobedience to any law that mandated the rendition of

fugitive slaves. Years before white thinkers like Henry David Thoreau or Theodore Parker

began arguing about when and why it might be justified to disobey the law, black activists

were acting on this. In Boston, black activists had long maintained a series of semi-legal

institutions like the New England Freedom Association that encouraged and protected

fugitives. And in cases like the rescue of Eliza Small and Polly Ann Bates, black activists (in

this case all women), wrestled with policemen in order to save fugitives.48 Activists like

Frederick Douglass had purposely bought tickets in white-only railroad lines throughout the

1840s in order to challenge the segregation of public facilities. Throughout the nation, black

activists took the lead in openly protecting fugitives and disobeying the various fugitive

slave acts. They lacked full citizenship, and so were unable to plead their case in a fair

courtroom, but for obvious reason they still wanted to protect loved ones. An unintended

consequence of their second-class citizenship was that they developed new forms of

resistance that aided in the fight against slavery and created one of the most important

46 William Lloyd Garrison, “The American Union,” Liberator, January 10, 1845.47 For a discussion of the contribution of black abolitionists to the civil-disobedience tradition, see Lewis Perry, “Black Abolitionists and Civil Disobedience,” in Karen Halttunen and Lewis Perry ed. Moral Problems in American Life: New Perspectives on Cultural History (Ithaca, NY: Cornell University Press, 1998), 103-21.48 James Oliver Horton and Lois Horton, Black Bostonians: Family Life and Community Struggle in the Antebellum North, rev. ed. (New York: Holmes and Meier, 2000), 107.

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American political traditions. The white theorists of civil disobedience, most notably Parker

and Thoreau, were well aware of this activity, and the successes of these black activists went

a long way towards convincing later theorists that men did not need to follow laws slavishly

in order to act justly. Every major antebellum work dedicated to civil disobedience

referenced fugitive slaves as prior examples of the conflict between morality and

government.49

Black activists fought back with words as well as actions. The black minister J.C.W.

Pennington authored one of the most influential texts arguing against social contracts. In

1842, in response to a fugitive slave case in Boston, Pennington had given a remarkable

sermon entitled Covenants Involving Moral Wrong are Not Obligatory Upon Man to his

congregation in Hartford, Connecticut. Printed into pamphlet form, it almost certainly

circulated among Boston’s black and abolitionist communities. A former slave from

Maryland, Pennington had long and lasting connections to Boston’s African-American

community. He helped William C. Nell organize conventions of black activists, and in 1849

he attended the World Peace conference in Paris with William Wells Brown.50

Pennington’s sermon was a direct assault on the idea that all our “laws, oaths,

promises, compacts, agreements, usages, and ordinances among men” were morally

49 In “Civil Disobedience” Thoreau wrote, “The proper place to-day, the only place which Massachusetts has provided for her freer and less desponding spirits, is in her prisons, to be put out and locked out of the State by her own act, as they have already put themselves out by their principles. It is there that the fugitive slave, and the Mexican prisoner on parole, and the Indian come to plead the wrongs of his race, and should find them; on that separate, but more free and honorable ground, where the State places those who are not with, but against her…” Thoreau, Collected Essays and Poems, 213. 50 For more on Pennington, see Christopher L. Webber, American to the Backbone: The Life of James W.C. Pennington, the Fugitive Slave who Became One of the First Black Abolitionists (New York: Pegasus Books, 2011).

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sanctioned even if they violated natural law.51 Part moral philosophy and part evangelical

jeremiad, Pennington’s sermon argued that ethical behavior had to conform to the will of

God. Arrangements made by men, society, or historical accident could not alter that moral

imperative. After laying out this universal foundational claim, he criticized the Constitution,

specifically the exact lines on the return of fugitive slaves that conservatives like Eliot and

Webster would invoke. Just as Theodore Parker would do later, Pennington contrasted the

Constitution with the Declaration of Independence, whose language had declared liberty to

be inalienable.

An important theme, for Pennington, was how the logic of contracts served to

encourage individuals to displace their own moral compass, to act in bad faith by allowing,

in a sense, the compact to do the thinking for them. Individuals gave up their moral sense to

the Constitution, asking it to act as “the umpire,” rather than make the difficult moral

decision themselves. As a result, morality was stripped from politics, since political debate

was confined to interpretation of contractual clauses. The question of slavery, Pennington

argued further, was a fundamentally moral one, however people might try to ignore its moral

dimensions. Echoing Garrison’s claim about the primacy of man over constitutions,

Pennington reminded his congregation that the Constitution was not “sovereign over the will

and power of the people… No, it is the creature of that will and power.”52 The Constitution,

then, had no binding power, according to Pennington. Not only did individuals not have the

obligation to follow the clauses that demanded the return of fugitives, but, when necessary,

they had the absolute duty to disobey the Constitution. Pennington quoted Isaiah that we are

commanded to “hide the outcasts.” Pennington did not use the phrase “higher law,” which

51 J.W.C. Pennington, Covenants Involving Moral Wrong are Not Obligatory upon Man (Hartford, CT: John C. Wells, 1842), 4.52 Pennington, Covenants Involving Moral Wrong, 11.

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did not enter the mainstream of the movement until years later, but he essentially meant the

same thing when he described a moral law as that “which has its foundation in the nature of

God, of man, and also of things,” and which was superior to man-made laws.53

Pennington was hardly the only black intellectual to contrast a “higher law” with the

contract-logic of the Constitution. Black lawyer John Rock, for instance, praised the “moral

insurrection of thought, which is continually teaching the people of this country that unjust

laws and compacts made by fathers are not binding upon their sons, and that the ‘higher law’

of God, which we are bound to execute, teaches us to do unto others as we would have them

do unto us.”54 Charlotte Forten, too, spoke warmly of “obeying the Higher Law, and

scorning all lower laws which are opposed to Justice and Humanity.”55 Perhaps the most

interesting version of the argument, after Pennington’s, was authored by Charles Lenox

Remond, the orator from Salem, Massachusetts. Writing before the term, “higher law” came

into use, Remond declared “the sin of our country is in having too much politics, and too

little humanity.” More interestingly, he criticized those who seemed to take an overly

mechanical and contractual interpretation of society. “Human society,” Remond declared,

“is not like a piece of mechanism, which may be safely taken to pieces and put together

again,” without considering the moral laws of the universe. This statement demonstrates

well black intellectuals’ connection of political theory to the defense of slavery. Remond’s

brilliant words echo the concern of Transcendentalists and other social critics that a logic of

53 Pennington, Covenants Involving Moral Wrong, 10, 5.54 Peter C. Ripley ed. The Black Abolitionist Papers Volume 5: The United States, 1859-1865 (Chapel Hill: University of North Carolina Press, 1992), 59. 55 Charlotte Forten Grimké The Journals of Charlotte Forten Grimké, ed. Brenda Stevenson (New York: Oxford University Press, 1988), 113 (November 26, 1854).

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industrialization and the market was preventing Americans from facing the moral issues of

the day.56

White radicals did, however, pick up the argument, eventually also attacking the idea

of the Constitution as a social contract, since this gave the Fugitive Slave Law the veneer of

patriotism and morality. For Theodore Parker, the target was too juicy. In his more

polemical moments, Parker came close to blaming all modern ills, including slavery, on the

moral philosophy of John Locke, whose “sensualism” (what we now call empiricism) was

responsible, according to Parker, for generations of moral relativists and apologists for

unjust social systems.57 According to Parker, Locke’s epistemology had no space for moral

values. Parker argued that in Locke’s system we can only “know” what our senses perceive,

and this left no place for transcendent values such as justice, equality, dignity, and freedom,

which were not experienced by the senses of smell, touch, or sight. Locke, of course, was

also known for his social contract theory, which Parker believed enshrined “materialism and

practical atheism” into law, and therefore denied the ability to make independent moral

judgment. The elevation of the Constitution and the celebration of law “arises from the

56 Charles Lenox Remond “The New Age of Anti-Slavery,” in Liberty Bell 1845, 187.57 One biographer summed up how Parker’s obsession with Locke inspired his political vision: “Was it a stubborn Calvinism that exercised its ancient tyranny over the minds of men? That Calvinism was a result of a false philosophy of man, a sensational philosophy that accepted the authority of the written word or of the authenticated miracle instead of the intuitive authority of the individual spirit. Did hunkerism rear its evil head in the land and demand obedience to man-made laws? That demand was based on the wicked fallacy that there is no higher law, no absolute right. Did man exploit his fellow-men, did wealth accumulate and men decay? It was because a sensational philosophy had distorted values, impaired the dignity of the human spirit and enhanced the significance of material things.” See Henry Steele Commager, “The Dilemma of Theodore Parker,” New England Quarterly 6, no.2 (June 1933): 257-77.

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philosophy of Hobbes and Filmer; yes, from the first principles of Locke and Rousseau,”

Parker declared.58

This early rejection, by some prominent abolitionists, of a contractual theory of

society complicates the notion, articulated recently by Amy Dru Stanley, that the North in

general, and abolitionists in particular, were interested in remaking the South by replacing

bonds of hierarchy with freely made contracts.59 In this interpretation, abolitionists serve as

the witting or unwitting avant-garde of capitalism and bourgeois relations, and their

opposition to forced-labor relations become a celebration of contractual wage-labor

relationships. There is no doubt that most abolitionists preferred that slaves have the right to

freely choose their employment, rather than be forced into it. Yet this need not be solely a

bourgeois argument; indeed, Marx himself agreed. Instead, there was a more complicated

process going on—at least before the Civil War—whereby contracts were most forcefully

defended by those in the North who had the most invested in placating the South, and

attacked by those intent on a more confrontational attitude toward the South. Abolitionists in

Boston were not Marxists or labor activists with an acute understanding of the wage system,

but, as good Romantics, neither were they blind defenders of the emerging order of

bourgeois modernity.

The most remarkable illustration of the power of this rejection of the logic of

contracts came in Richard Hildreth’s remarkable book, Despotism in America. Enormously

58 Locke, Hobbes, and Rousseau, of course, were all prominent philosophers of a contract theory, despite their differences. It is unclear what Parker meant by including Filmer, who believed in a patriarchal monarchy modeled on Adam’s power. Perhaps, as Thomas Bender has suggested to me, he was referring to Southern patriarchal models of social control. Theodore Parker, The Collected Works of Theodore Parker: Discourses of Slavery, ed. Francis Power Cobbe (London: Trubner, 1863), 6: 130.59 Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (New York: Cambridge University Press, 1998).

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influential in the creation of the Republican Party’s criticism of the South as unproductive

and backward, it grew out of Hildreth’s engagement with two separate intellectual traditions:

Boston abolitionism (he would become a member of the Boston Vigilance Committee) and

Robert Owen’s socialism.60 Hildreth devoted a section to attacking the logic of contracts,

picking out Locke and Hobbes and Rousseau, and arguing that “to say, that by committing

the folly or the crime of contracting to do an immoral act, a man lays himself under a moral

obligation to do that immoral act, is to overturn the very foundations of morality.”61 For

Hildreth, opposition to contract theory represented an assault on the logic of the free market.

The sides were rarely so neatly drawn—with contract-embracing Cotton Whigs defending

pro-slavery measures on one side and socialist abolitionists on the other—as they were with

Hildreth. But his book illustrated how the radical assault on contracts could inspire

criticisms of capitalism as well. Wendell Phillips would be just one of many abolitionists to

be profoundly affected by Hildreth’s writings and would, as a result, later join the labor

movement.62

The Dual Meaning of the Higher Law

Central to the objection of Transcendentalists and other radicals to contract theory

was the way it seemed to substitute historical or theoretical justification for direct moral

intuition, emphasizing the real in the place of the ideal. As abolitionist and Transcendentalist

Samuel Johnson wrote, the Fugitive Slave Law brought to a head “this long evaded question

60 Albert von Frank, The Trials of Anthony Burns: Freedom and Slavery in Emerson’s Boston (Cambridge, MA: Harvard University Press, 1998), 156. 61 Richard Hildreth, Despotism in America: An Inquiry into the Nature, Results, and Legal Basis of the Slave-Holding System in the United States (Boston: John P. Jewett, 1854), 171. 62 For Wendell Phillips on Richard Hildreth see Wendell Phillips, Speeches, Lectures, and Letters (Boston: James Redpath, 1863), 131, 348.

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between conscience and the fixed facts of human law.” 63 Unsurprisingly, Boston radicals

believed that conscience should win out. Conservatives saw this as anarchy, as every man

acting on his own whim in a moral Tower of Babel. Transcendentalists viewed personal

conscience as the only reliable manner to perceive, and then follow, universal ethical laws:

“the natural duty to keep the law of God,” as Theodore Parker called it.64 Resorting to

Constitutional arguments was a form of bad faith, as Americans used the Constitution as a

placeholder, rather than listening to their own moral compass, letting comfortable legal

language soothe their unsettled intuition. In this manner, Parker warned, a typical American

“loses his natural conscience and gets a fictitious and artificial conscience.”65 An action did

not become morally correct, the radicals argued, simply because a majority voted for it.

Years before Thoreau made this same point in his famous On Civil Disobedience, this

argument had become commonplace among black intellectuals. In 1847, William Wells

Brown, for instance, wrote a public letter to Samuel May in the Liberator (one of the few

newspapers Thoreau read regularly), arguing that “the fact that a majority are against us,

does not make them right or us wrong.”66

As a thought-experiment, radicals often asked their listeners to imagine compacts

made between clearly immoral men for immoral reasons. Elizur Wright, after listening to

Benjamin Curtis’s argument, referenced above, about the two sovereign rights of the states

(to form compacts, and to determine citizenship) replied that under this logic Americans

would have the right not only to drive into the sea those who were shipwrecked, but also to

63 Samuel Johnson, “The Prestige of Slavery” Liberty Bell 1851, 220.64 Theodore Parker, “The Function and Place of Conscience in Relation to the Laws of Men,” in Collected Works of Theodore Parker, 5:147.65 Theodore Parker, The Life and Correspondence of Theodore Parker, ed. John Weiss (New York: D. Appleton, 1864), 1:377. 66 The Black Abolitionist Papers Volume 4: The United States, 1847-1858, ed. Peter C. Ripley (Chapel Hill: University of North Carolina Press, 1991), 4.

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“make contracts with pirates, to return their captives, who might escape to us, if they (the

pirates) would but make it profitable for us to do so.”67 Theodore Parker likewise compared

the Founding Fathers to “forty thieves assemble[d] on Fire Island,” and argued that their

sons would not be held morally responsible for their parents’ oaths.68 Thoreau,

characteristically, responded to arguments about the constitutional compact with curt

economy: “The fact which the politician faces is merely, that there is less honor among

thieves than was supposed, and not the fact that they are thieves.”69

Joyce Appleby has written that the “higher law” tradition in American legal thought

traces back to dueling conceptions of the Jeffersonian “law of nature” and the Federalist

“law of conscience.”70 She is correct that ideas about natural law, and discussions of when it

is right to violate a law, have long roots in American thought—fueled by the legacies of the

Reformation and memories of the English Civil War—well pre-dating Transcendentalism,

the rise of a significant free black intellectual community, and immediate abolitionism. But

for the radicals on the Boston Vigilance Committee, a “higher law” denoted more than

simply old ideas about natural law and resistance to tyrants being obedience to God.

The key factor was that, for radicals, the “higher law” had a dual meaning. It referred

to the idea that there were standards of justice that were more important and lasting than the

codes implemented by men. This was how politicians like William Seward, from whom the

abolitionists stole the term, invoked it, as a purely political and ethical judgment. For Boston

radicals the higher law also referred to a celebration of the spiritual, poetic, and aesthetic

67, “B.R. Curtis’s Opinion of the Fugitive Slave Law—no. 3,” Daily Chronotype, December 3, 1850.68 Collected Works of Theodore Parker, 5:158-59.69 Thoreau, Collected Essays and Poems, 333.70 Joyce Appleby “Americans’ Higher-Law Thinking behind Higher-Lawmaking” Yale Law Journal 108, no. 8, (June 1999): 1995-2001.

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values that the world contained: ideals that they strove to make real in their behavior and

politics. Influenced by British romantics like Thomas Carlyle (who ironically was pro-

slavery) and the Swedish religious eccentric Emmanuel Swedenborg, they held the outside

world to be representative of higher spiritual realities.71 From German Romantics like

Friedrich Schiller, they inherited the idea that humans fulfilled themselves through self-

expression and aesthetic creation. Only through understanding this dual nature of the term

can we make sense of one of the stranger elements of antebellum politics: that the exact

same phrase debated in political pamphlets and on stump speeches was also used by

Thoreau to describe how simple living and an acquaintance with the wild sides of nature

would “preserve his higher or poetic faculties.” Just as the Emersonian idea of a principled

“manhood” connected inward-looking impulses of individual purity, with the outward-

looking striving for unity with the Over-soul, so the idea of the higher law connected

allegiance to outward laws of ethical duty with the search for spiritual and artistic meaning

within. The inward became outward and the outward became the inward. By emphasizing

the self-expressive meanings of the “higher law,” they distinguished their project from the

Revolutionary-era ideology that held that “resistance to tyrants is obedience to God.” For

Romantic abolitionists resistance could be a more individual act, less concerned with

collective rebellion and changing the state, than setting an example of moral principles.

This collection of political and philosophic impulses—a Romantic projection of

spirituality onto the world, combined with a distaste of social compacts and narrow man-

made legalism—should not be surprising. Social compact theory was born out of a modern

71 As Emerson put it: “I believe in the existence of the material world as the expression of the spiritual or real.” Quoted in F.O. Matthiessen, American Renaissance: Art and Expression in the Age of Emerson and Whitman (New York: Oxford University Press, 1941), 25.

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intellectual worldview that was absorbing a disenchanted and rationalistic vision of the

outside world. As Charles Taylor has argued, “underlying this atomistic contract theory”

was, first and foremost, a “disengagement from cosmic order [which] meant that the human

agent was no longer to be understood as an element in a larger, meaningful order.”72

Romantics like the American Transcendentalists held that it was the dissecting logic of

businessmen and lawyers, similar to what Orestes Brownson called the “frigid utilitarianism

of the last century,” the attempt to base morality and society on the grounds of simple self-

interest rather than divine or sublime intuition.73 Such a worldview and such forms of

reasoning seemed to foreclose on the Transcendentalists’ Romantic striving for life, with

more fullness and resonance than the money-grubbing they saw around them. For

Transcendentalists, then, their rebellion against the spiritually enervating Lockean

disenchantment led them directly to reject social-compact logic as well.

In Walden, Thoreau’s chapter entitled “Higher Laws” does not reference

government authority, slavery, or contracts. Rather, it is a meditation on the animal nature in

human beings, their instinct towards a “primitive rank and savage” life, whose sensuality he

hoped to transcend (or repress), while embracing its closeness to nature and untamed

wildness. Thoreau’s model here was not Christianity or the Enlightenment, but rather the

“Hindoo” wisemen who knew how to perform even the most mundane and base bodily

functions in an elevated and conscious manner. Thoreau’s hope, then, was that individuals

could live in the world, yet keep an eye on something higher.74 In “Life without Principle,”

72 Charles Taylor, Sources of the Self: The Making of Modern Identity (Cambridge: Harvard University Press, 1989), 193.73 Orestes Brownson, New Views of Christianity, Society, and the Church (Boston: James Munroe, 1836), 55. 74 Henry David Thoreau, Collected Prose (New York: Library of America, 1985) 493. Walden was published in 1854, after these debates, but illustrates well the themes of the higher-law rhetoric.

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arguably Thoreau’s most alienated essay, he made a similar argument, criticizing wealth-

obsessed Americans who cared only for material profit, ignoring their spiritual growth.

Thoreau intended to title this essay, “The Higher Law,” too, but the editor of the Atlantic

Monthly objected, probably, as Barbara Packer suggests, because of the radical antislavery

connotation of the term.75

Connecting the dual nature of the higher law was the distinction between messy

reality and elevated hopes, which Thoreau called the “interval between my ideal and the

actual.”76 Conservatives like Webster and Nathan Appleton considered themselves practical

men, interested only in the real things that actual men had instituted in the government,

while radicals contrasted this with what should be, according to the laws of God and the

nature of man.77 Again, it was Thoreau who best connected these values; writing of the

Anthony Burns rendition, he noted that, although the mass of Massachusetts men were

servile and unwilling to follow the higher law, the one thing that gave him hope was the

simple beauty of a water lily, a symbol of beauty and purity rising out of muck and mud to

face heavenward.78

Following the higher law allowed radicals to perform both their political values and

their aesthetic and spiritual sensibilities at the same time. Furthermore, they saw in

conservatives’ actions the negation of these values: a spiritually and ethically impoverished

expediency. Radicals assailed contract theory—with its legalism, appeals to history and

75 Packer, Transcendentalists, 261. 76 Henry David Thoreau, The Journal: 1837-1861 (New York: New York Review Books, 2009), 62.77 Daniel Webster, for instance, lectured abolitionists that “we must view things as they are. Slavery does exist in the United States.” The Papers of Daniel Webster: Speeches and Formal Writings, eds. Charles Wiltse and Michael J. Birkner (Hanover, NH: University Press of New England, 1988), 2:522.78 Thoreau, Collected Essays and Poems, 346.

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authority, and seeming denigration of individual conscience—as lacking in spiritual values,

as the position of atheists. Boston radicals declared that basing one’s political philosophy on

human desires and individual prudence (not to mention economic interest), rather than moral

values and humanity’s social nature (what Parker called “gregariousness”), was “practical

atheism.” Transcendentalists, of course, had long been accused of being atheists themselves,

or at the very least, infidels, and Garrison was constantly being accused of blasphemy,

unorthodoxy, and unbelief. 79 Thus they relished the opportunity to return the insult. This

charge was echoed by voices as prominent as Ralph Waldo Emerson’s, who deplored the

“wretched atheism” of a Daniel Webster speech, and as obscure as one William Durfee, who

wrote to the Liberator that the logic of the Fugitive Slave Law, the federal government, and

contract theory “emphatically declares there is no God,” and was “an atheistical position.” 80

Black abolitionists agreed. Lewis Hayden, for example, called the Fugitive Slave Law

“ungodly,” while J.W.C Pennington declared the clause of the Constitution requiring the

return of fugitive slaves to be “what God pronounces a nullity.” 81

In attacking contract theory as atheistic, radicals walked a fine line. One interesting

problem was that by the 1850s, especially with the introduction of German radicals from the

1848 revolutions, there were some actual atheists, like Boston radical Karl Heinzen,

involved in the fight against slavery, who the radicals risked alienating. As Theodore Parker

wrote in a letter about new immigrants, “in the Germans I find one fault …many of their

ablest and best educated young men are atheists.” 82 Especially in Boston, there were a

79 See for instance, The Transcendentalists: An Anthology, ed. Perry Miller (Cambridge, MA: Harvard University Press, 1950), 210-13.80 “Conscience vs. The Government,” Liberator April 11, 1851.81 Laurie, Beyond Garrison, 234-35; Pennington, Covenants Involving Moral Wrong, 11.82 Theodore Parker to Augustus Eggers, December 10, 1850, Theodore Parker Papers vol. 4, p.322, Massachusetts Historical Society, Boston.

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number of unorthodox Christians, starting with Garrison himself, who were often labeled

infidels by the orthodox press. Elizur Wright, who would declare himself an atheist after the

Civil War, defended nonbelievers even in 1850. But he drew a sharp distinction between

“theoretical atheists,” those who openly disbelieved in a God, and “practical atheists,” those

who acted as if there were no God, even while nominally pretending to believe in one.

Responding to a letter to his newspaper by an antislavery atheist, Wright assured his

readership that he had no “particular quarrel” with theoretical atheists like Fanny Wright (no

relation to Elizur), and the letter-writer, who “recognize their obligations to a supreme law

of morals.” He objected, however, to hypocrites who claimed to believe in a God, yet whose

actions “make a nullity of Him” (note the similar language to Pennington, who was writing

years earlier). This was the same distinction that Parker made when he acknowledged the

difference between “speculative atheism” and “practical atheism.” Parker disagreed with,

yet respected, the consistency of the first type, but scourged the “practical atheists” who

acted as if there were no moral values beyond what was common in their current society.83

For all the New England parochialism of some abolitionists, many were surprisingly tolerant

of professed atheists, agreeing with Thomas Wentworth Higginson that a real atheist who

disbelieved in the true God was preferable to a hypocritical and narrow Calvinist who

believed in a warped God.84

When Webster and his allies responded by mocking the whole idea of a higher law,

they confirmed to Emerson and Parker the suspicion that supporters of the Fugitive Slave

Law were atheists. For conservatives, on the other hand, the Constitution set the limits to

83 Collected Works of Theodore Parker, 11:26.84 As Thomas W. Higginson said: “far rather would I disbelieve in God than believe in a such a God as some of the publications of the American Tract Society portray to you and your children.” Thomas Wentworth Higginson, Things New and Old: An Installation Sermon (Worchester, MA: Earle and Draw, 1852), 12.

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political debate: it was pointless, and in all likelihood dangerous, to debate a political

morality outside (or worse, “above”) the contractual agreements laid down in the

Constitution. One conservative clergyman declared it pure nonsense to “talk about a ‘higher

law’ with an oath to support the Constitution.”85 Moses Stuart, the conservative Andover

theologian, wrote that the higher law was a product of abolitionists’ “own passions and

prejudices. It is a conscience wholly subjective.”86 Speaking in Virginia, Daniel Webster

called the higher law an absurdity, asking “What is the higher law? How high is it?… Is it

higher than the Blue Ridge? Higher than the Alleghany Mountains?”87

This rhetorical position of attacking nominally religious men such as Daniel Webster

as atheists, while defending actual atheists, illustrates how the radical vision had expanded

beyond traditional religious justifications for civil disobedience, even while maintaining a

language of spiritual meaning. Radicals like Parker, Higginson, Nell and others were not

religiously orthodox by any standard and so they did not associate “following God’s law,”

with following the dictates of a particular sect’s dogma. Instead, they saw themselves

resisting a worldview lacking in spiritual and moral values, in which political decisions were

made through a pragmatic and expedient logic, rather than one that recognized affinities and

connections between the material everyday world of people and things, on the one hand, and

the political, spiritual, and moral values that transcended that world, on the other. The

Fugitive Slave Law not only committed crimes against people but was also spiritually

85 Nineteenth Annual Report, Presented to the Massachusetts Anti-Slavery Society, By its Board of Managers, January 22, 1851, 76 86 Moses Stuart, Conscience and Constitution: With Remarks on the Recent Speech of the Honorable Daniel Webster in the Senate of the United States on the Subject of Slavery (Boston: Crocker and Brewer, 1850), 61.87 Quoted in James Freeman Clarke, Antislavery Days: A Sketch of the Struggle which ended in the Abolition of Slavery in the United States (New York: R. Worthington, 1884), 145.

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enervating. As Thoreau wrote, it “interrupted me and every man on his onward and upward

path.” 88

The dual nature of the “higher law” played on Romantic-era ideals that righteous

political activity was the sign of a poetic and authentic life. Thomas Wentworth Higginson,

for instance, melodramatically declared that “existence looks worthless” under the rule of

slave-catchers, and that he could “only make life worth living for, by becoming a

revolutionist.” Higginson was convinced that Northerners would begin to challenge the slave

power only when they learned that “life is something more than dress and show… there is

some nobler aim in existence than a good bargain, and a fast horse, and an oyster supper.” 89

As John Stauffer has shown, black abolitionists like Frederick Douglass and James McCune

Smith also connected their political activism to a Romantic Byronic lifestyle.90

Like their white allies, black appreciation for the higher law was more than simply a

willingness to violate unjust laws. As for others, the higher law had a dual meaning,

containing both political and aesthetic-moral content. Romanticism as a culture of thought

and an aesthetic had a large impact on the antebellum black community. Black abolitionists,

for instance, frequently quoted poetry to justify their embrace of the higher law, with Lord

Byron, Robert Burns, Michael Joseph Barry, and James Russell Lowell being particular

favorites. No one exemplified this logic better than Charlotte Forten, whose journal was both

a protest against the racism and injustice she experienced daily, and an account of her

existential struggles, as she tried to overcome her suspicion that “there is nothing worth

88 Thoreau, Collected Essays and Poems, 345.89 Thomas Wentworth Higginson, Massachusetts in Mourning: A Sermon Preached in Worchester, on Sunday, June 4th, 1854 (Boston: James Munroe, 1854), 13.90 John Stauffer, The Black Hearts of Men: Radical Abolitionists and the Transformation of Race (Cambridge, MA: Harvard University Press, 2002).

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living for.” 91 Forten, who would befriend Whittier and Higginson, found her answer in

poetry, literature, and antislavery activism, all of which she linked together. In a typical

entry, this one from 1858, she declared that she had “Strengthened my own aspirations for

something high and holy.— My earnest longings to do something for the good of others. I

know that I am very selfish. Always the thought of self-culture presents itself first. With

that, I think I can accomplish something more noble, more enduring, I will try not to forget

that, while striving to improve myself, I may at least commence to work for others.”92

Forten’s vision was consistent with black feminist orator Maria Stewart, who in the 1830s

had complained that black women “possess noble souls aspiring after high and honorable

acquirements,” but were unable to live full spiritually fulfilling lives because of “the chains

of ignorance and poverty to lives of continual drudgery and toil.”93

If their interest in the dual nature of the higher law was similar of that of white

intellectuals, black intellectuals differed by being far more likely to equate following the

higher law with active, and sometimes violent, resistance. Especially after the passage of the

Fugitive Slave Act, black intellectuals invoked the higher law to justify broader resistance

and revolution, rather than simply the localized violation of one law. White abolitionist

Theodore Parker was well-known for referencing his musket and willingness to use

violence, but black Bostonians advocated violence in the service of the “higher law” well

before Parker did. As late as October 7, 1850, Parker was willing to use “any mode not

involving the use of deadly weapons, to nullify and defeat the operation of this law.”94 Yet

six months earlier, Samuel Ringgold Ward had given a rousing speech at Faneuil Hall in

91 Grimké, Journals of Charlotte Forten Grimké, 163 (September 21, 1856). 92 Grimké, Journals of Charlotte Forten Grimké, 190 (February 5, 1857). 93 Maria W. Stewart: America’s First Black Woman Political Writer, ed. Marilyn Richardson (Bloomington: Indiana University Press, 1987), 46.94 “A Good Testimony from the Pulpit,” Daily Chronotype, October 7, 1850.

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which he contrasted the “law of almighty God” with that of the Fugitive Slave Law, before

bringing down the house by declaring that if government officials “cannot live without

playing the pander to the slave-hunter, they need not live at all. Such crises as these leave us

the right of Revolution, and if need be, that right we will, at whatever cost, most sacredly

maintain.”95 Of course black intellectuals, from David Walker to Henry Highland Garnet had

long been more willing to imagine revolutionary activity—in the words of Garnet, “there is

not much hope of redemption without the shedding of blood”—than were white

intellectuals.96 The result was that “higher law” rhetoric more often shaded into openly

revolutionary language in the mouths of black activists. Thomas Wentworth Higginson

agreed, arguing that white activists were unreliable, as they were either political abolitionists

who wanted to maintain their status as good citizens, or nonresistants who were unwilling to

take any action that threatened violence. Black activists, on the other hand, when faced with

violating the Fugitive Slave Act, “had just proved their mettle, and would doubtless do it

again.” 97

It shouldn’t be surprising, then, that black abolitionists had taken the lead in

organizing resistance to the Fugitive Slave Act. In the fall of 1850, Hayden’s organization

had called for a meeting at Faneuil Hall. On October 14, an overflowing crowd listened to

speeches by black and white orators and voted to form a “Committee of Vigilance and

Safety.” The new organization, comprised of about a hundred activists, was a remarkable

mixture: Theodore Parker, the Transcendentalist theologian, alongside Lewis Hayden, the

runaway slave; Ellis Gray Loring, Emerson’s friend, alongside the black barber John T.

95Black Abolitionist Papers, 4: 50-51.96 Henry Highland Garnet, A Memorial Discourse (Philadelphia, PA: Joseph Wilson, 1865), 49.97 Thomas Wentworth Higginson, Cheerful Yesterdays (Boston: Houghton, Mifflin, 1900), 140.

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Hilton; Samuel E. Sewall, descendent of a famous Puritan judge, alongside black leaders

like William C. Nell. Goaded on by black orator Charles Lenox Remond, the group

emphatically resolved that “Constitution or no Constitution, law or no law, we will not allow

a fugitive slave to be taken from Massachusetts.”98 Before the month was over, slavehunters

would be in Boston to test their mettle.

98“Rocking of the Old Cradle of Liberty, Immense Meeting,” Liberator, October 18, 1850.

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