Nor was this the last attempt to legislate a balance of power before the Civil War. By the time we get to Thoreau’s 1854 essay “Slavery in Massachusetts,” we find him speaking of the repudiation of “the compromise compact of 1820” and the North’s concern for “the destiny of Nebraska.” In the spring of 1854 Congress had broken the promise of the Missouri Compromise by passing the Kansas-Nebraska Act, which turned the question of slavery in those territories over to the settlers themselves. Rather than quieting the issue, this “popular sovereignty” provision prompted each side to send armed settlers west, and before long “border ruffians” from Missouri and Free-Soilers from the North were fighting a civil war in Kansas. One of those Free-Soilers was a man named John Brown, recently emigrated with his sons from Ohio.
In sum, every decade of Thoreau’s adult life saw westward expansion exacerbating the division between North and South and rekindling the slavery debate. Moreover, by the mid-1850s it seemed to New Englanders that every case had ended in a compromise with slavery (always in the name of saving the Union), so that compromise itself appeared less and less like wise statecraft and more and more like dealing with the devil.
Still, as long as the devil in question did his dealing several thousand miles away, many in New England were content to leave him be. It wasn’t just that the Union should be preserved; New England textile factories depended on Southern cotton, and many merchants saw no need to pick a fight with their suppliers. When the Compromise of 1850 was passed, nine hundred wealthy Bostonians signed a public letter praising Massachusetts senator Daniel Webster for his eloquent support of the measure.
Soon, however, a key part of the compromise that Webster helped negotiate brought the distant devil to the streets of Boston (and goaded Thoreau, who had been polite about Webster before the compromise, into calling him a “dirt-bug”). Since the first days of the Republic, there had been no good resolution to the problem of how the Free States should deal with escaped slaves. In this regard, in fact, the U.S. Constitution itself might well be called the Compromise of 1787, for its promise of liberty was regularly cut with concessions to slavery. The delegates had agreed, for example, to count each slave as three-fifths of a free person and to let the slave trade continue for at least twenty years. More important for the Compromise of 1850, they had agreed that fugitive slaves must be returned to their masters, even if they had managed to get themselves to the North. A paragraph in Article IV spelled this out in euphemistic language, allowing that any person “held to service or labor in one State … , escaping into another, shall … be delivered up on claim of the party, to whom such service or labor may be due.” In 1793, shortly after the Constitution was ratified, an early Fugitive Slave Law had fleshed out this clause by articulating the procedure for seizing and returning escaped slaves.
Northern states bridled at the way this law took judicial matters out of their hands, and consequently many of them enacted “personal liberty laws” meant to limit the federal law. (These laws gave slaves the right to a jury trial, for example, which the federal law denied.) The result was fifty years of dissatisfaction on both sides. In some cases escaped slaves were captured and returned to slavery, angering the North; in others they found safe haven, angering the South. It was at the insistence of the South, then, that the Compromise of 1850 included a new and more stringent Fugitive Slave Law, one that not only denied jury trials to runaways but prohibited them from testifying on their own behalf, levied heavy penalties against anyone who came to their aid, and allowed for enforcement by federal troops and marshals.
In the short term the law was often effective, but in the long term it backfired, for in response to each slave captured and returned, a thousand-Northern hearts were hardened against slavery, the South, and the North’s complicit public servants. Just as in the Vietnam era, when the military draft forced young men to make personal decisions about a distant conflict, in the early 1850s the Fugitive Slave Law forced local functionaries in New England to make personal—and public—decisions about what had recently been a hateful but distant practice. Before the 1850s Boston’s Cotton Whigs—those conservative merchants who praised Webster’s acceptance of the Fugitive Slave Law—had the luxury of saying that while they personally opposed slavery, it was more important to preserve the Union than to solve a problem that didn’t exist at home. But then came a series of cases in which local blacks—men and women with families, with jobs, with ministers who cared about them—were being captured by slave hunters and held at the Boston Court House, their faces staring through the bars at citizens passing on the street. Under these conditions, more and more Boston Brahmins found themselves able to imagine joining their abolitionist neighbors and breaking the federal law.
The first of the fugitive slave cases that caught Thoreau’s attention was that of Thomas Sims. Having fled from Georgia, Sims was captured on April 3, 1851, in Boston and sent back to his master on April 12. Thoreau filled pages of his journal with scornful complaint about the servility of the newspapers and the complicity of the state. As for how the law itself should be tested, the journal entries express his doubt that any court was in a position to decide the case:
It has come to this, that the friends of liberty, the friends of the slave, have shuddered when they have understood that [Sims’s] fate has been left to the legal tribunals, so-called … . The people have no faith that justice will be awarded in such a case. The judge may decide this way or that; it is a kind of accident at best. It is evident that he is not a competent authority in so important a case. I would not trust the life of my friend to the judges of all the Supreme Courts in the world put together, to be sacrificed or saved by precedent.
Ideally, in American jurisprudence grave legislative attacks on liberty could be blocked by appeals to the Constitution, and it is likely that Thoreau is thinking of the history of such appeals when he doubts the power of “precedent” to save poor Sims.
The problem was that legislation involving slavery was a special case in constitutional law. The Sims case proved the point, for those who appealed to the law to stop his return to Georgia found themselves met and turned back exactly on constitutional grounds. Lemuel Shaw, chief justice of the Massachusetts Supreme Court (and, by the way, Herman Melville’s father-in-law), ruled not only that the Fugitive Slave Law was constitutional but that the United States itself would never have come into existence had the Constitution not allowed for slavery. In a decision that let Sims be sent back to Georgia, Shaw wrote:
Slavery was not created … by the Constitution; it existed before; it would have existed if the Constitution had not been made. The framers of the Constitution could not abrogate Slavery, or the rights claimed under it. They took it as they found it, and regulated it to a limited extent.
The Constitution … was the best adjustment which could be made of conflicting rights and claims, and was absolutely necessary to effect … the general pacification, by which harmony and peace should take the place of violence and war.
Similar decisions came down from the U.S. Supreme Court whenever it was faced with questions about slavery. In the 1857 Dred Scott case, for example, the Court found that it had no legal obligation toward slaves because they were not actually citizens, having been viewed as belonging to an inferior order when the Constitution was written.
For many in the North such legal sophistry did nothing but reduce respect for law itself and give new currency to the transcendentalist creed that written law should always be held accountable to the higher law inscribed in human conscience. Thoreau’s aphoristic assertion “They are the lovers of law and order, who observe the law when the government breaks it” comes from “Slavery in Massachusetts,” his published attack on the Fugitive Slave Law, where we also find what must be his answer to Shaw’s ruling in the Sims case:
The question is not whether you or your grandfather, seventy years ago, did not enter into an agreement to serve the devil, … but whether you will not now, for once and at
last, serve God … by obeying that eternal and only just CONSTITUTION, which He, and not any Jefferson or Adams, has written in your being.
In the course of denying slaves any constitutional refuge, Justice Shaw had tried to highlight the virtues of compromise, speaking grandly of “harmony and peace” replacing “violence and war.” Within a few years, however, his ruling proved instrumental in a reversal of that logic. In May 1854 an escaped slave named Anthony Burns was arrested in Boston, and his master began the proceedings to return him to Virginia. The hearing to, determine if Burns was in fact the man his master said he was (the only question open to review under the Fugitive Slave Law) threw the city into turmoil. Abolitionists, having learned from Shaw that legal arguments would not help their cause, resolved to rescue Burns from the Boston Court House, where he was being held, and speed him off to Canada. Thus two days after Burns was arrested, and following an inflammatory rally at Boston’s Faneuil Hall, a woefully disorganized mob attacked the courthouse, battering down the door and killing a deputy U.S. marshal before being beaten back.
If the object was to rescue Burns, the attack was a grave mistake, for by morning an overwhelming force of federal troops and state militia had secured the building. A week later, when Burns was finally remanded to Virginia, he was led to a ship in Boston Harbor surrounded by a guard of U.S. marshals carrying pistols and drawn cutlasses. In front of these guards marched a company of U.S. Marines, a company of U.S. infantry, and—on horseback—a company of Boston’s National Lancers. Behind the marshals marched another company of marines, followed by artillery officers with a horse-drawn cannon. In short, for a week in the spring of 1854 Boston—which had long imagined itself the cradle of liberty—was an occupied city, with local law suspended and federal law carried out by force of arms. Harmony and peace seemed then quite distant, and even Thoreau, whose earlier essay on disobedience was a model of civility, found himself imagining violence and war: “My thoughts are murder to the State.”
V. “SUPPOSE BLOOD SHOULD FLOW”
Because “Civil Disobedience” so deeply influenced both Mohandas Gandhi and Martin Luther King, Jr., the impression has arisen that Thoreau himself was an advocate of nonviolent resistance. That is, in fact, a plausible reading of “Civil Disobedience,” for Thoreau’s action in the instance he describes was almost wholly passive. He simply didn’t pay his taxes. He did not announce his case beforehand and force the state to act; he did not organize fellow tax resisters; he did not lie in the streets to interfere with the business of the town. Though his position on taxation was considered and deliberate, his actual arrest arose because he was simply going about his business when the state stood in his way. Nor was Thoreau himself a violent man. There are no famous stories of his prowess with a gun.
Still, “Civil Disobedience” contains hints of Thoreau’s more aggressive side, one that would become patently evident a few years later. The essay’s original title, “Resistance to Civil Government,” is one indication. At the time he wrote, Thoreau was well aware of a national debate between resisters and nonresisters, the latter being the ardent Christian pacifists of the nineteenth century. Men like William Lloyd Garrison and Adin Ballou called themselves nonresisters because they believed, as Ballou wrote, in the “non-resistance of injury with injury—evil with evil.” A declaration that Garrison wrote in 1839 spelled out the consequent positions: nonresisters refused all physical force and coercion; they would submit passively to enemies and thieves and forgive rather than punish them; they would countenance no prisons, no retaliation, no retribution, no revenge; they would suffer “insult, outrage … , even death,” for after all “so they treated the Messiah.”
As early as 1841 Thoreau had apparently dissented from such sweeping pacifism, for in a debate at the Concord Lyceum he had taken the affirmative on the question “Is it ever proper to offer forcible resistance?” The later essay takes the affirmative again, though mutedly. Other than the title, the only passage where we find a brief flash of the possibility of confronting injury with injury is this:
When the subject has refused allegiance, and the officer has resigned his office, then the revolution is accomplished. But even suppose blood should flow. Is there not a sort of blood shed when the conscience is wounded? Through this wound a man’s real manhood and immortality flow out, and he bleeds to an everlasting death. I see this blood flowing now.
Thoreau begins here with his preferred politics, revolution by signing off, and when he turns to an imagined alternative, it is not a little figurative, but nonetheless there it is: it would be better to shed blood than to compromise a matter of conscience.
This metaphoric blood has become literal by the time of Thoreau’s next overtly political essay, “Slavery in Massachusetts.” There we find a reference to the “heroic attack on the Boston Court-House,” a phrase that deserves to be underlined so as to see the progression of Thoreau’s thought. “Slavery in Massachusetts” is primarily a response to the Fugitive Slave Act of 1850 and to the Anthony Burns affair, which, as I have said, included the storming of the courthouse where Burns was being held and the death of a deputy U.S. marshal. That assault, that political murder, is the “heroic attack” to which Thoreau refers.
Thoreau and his fellow transcendentalists had always had an interest in heroes and bravery. Thoreau’s earliest journal contains long entries on bravery (“We do all stand in the front ranks of the battle … ; where there is a brave man there is the thickest of the fight”), and a youthful essay, “The Service: Qualities of the Recruit,” is an ode to the martial spirit. One gathers that this side of Thoreau came forward most fully in debate and argument. As Emerson said at Thoreau’s funeral:
There was somewhat military in his nature not to be subdued, always manly and able, but rarely tender, as if he did not feel himself except in opposition … . He … required … a roll of the drum to call his powers into full exercise.
Every greeting-card shop in America now has something to remind us of that line from Walden about marching to “a different drummer,” but as a recent biographer points out, it is mostly soldiers who march to drums.
Again, the military side of Thoreau is spiritual rather than physical, but his metaphors predispose him to assent when anyone appears actually willing to join heroic conscience with physical action. Such, he thought, were the men who attacked the courthouse trying to free Anthony Burns (the fact that in doing so they killed a man is not mentioned in the essay, only the “heroic attack”). Such, above all, was John Brown, who later led an attack on the federal arsenal at Harpers Ferry, Virginia.
I shall have more to say about Brown below, but for now I want simply to mark the last phase in the evolution of Thoreau’s relationship to violence. In his lectures on John Brown, Thoreau clearly is a resister, not a nonresister. It was John Brown’s position, he says, “that a man has a perfect right to interfere by force with the slaveholder, in order to rescue the slave. I agree with him.” “[F]or once the Sharps’ rifles and the revolvers were employed in a righteous cause. The tools were in the hands of one who could use them.” This from a man who worried all his life about a culture dedicated to producing “improved means to unimproved ends.” Here the improved end is the abolition of slavery, and the old means—rifles and revolvers—serve very well.
What had changed in the decade between “Civil Disobedience” and the John Brown essays such that bloodshed and armed insurrection would replace passive resistance and simple signing off? The pivotal moment is recorded toward the end of “Slavery in Massachusetts.” I earlier mentioned Thoreau’s genius for perspective, his great ability to get himself outside the common frame of reference. On that ground, as I noted, “Civil Disobedience” contained his critique of traditional politicians who “speak of moving society, but have no resting-place without,” who “never [go] behind government, and so cannot speak with authority about it.” But once the Fugitive Slave Law began to be enforced in Massachusetts, Thoreau found that he himself no
longer had a “resting-place without”; not even nature allowed him to get “behind.” Thus he writes in “Slavery in Massachusetts”: “I walk toward one of our ponds, but what signifies the beauty of nature when men are base? … The remembrance of my country spoils my walks.” There was a time when he had imagined that his life might be conducted in a space between heaven and hell, but now he found that no matter where he went he was “wholly within hell.” “My old and worthiest pursuits have lost I cannot say how much of their attraction … since Massachusetts last deliberately sent back an innocent man, Anthony Burns, to slavery.”
It wasn’t just that the politics of slavery had penetrated to “our ponds,” either; it was the humiliation that went along with it. For years the slaveholders had managed to draw the line against Northern abolitionists, and to do so with physical force and violence. In 1844, when Thoreau’s neighbor the former congressman Samuel Hoar was sent to South Carolina to advocate for free Massachusetts blacks who were being jailed in Charleston without cause, a mob unceremoniously rode him out of the city. In 1851 several hundred federal troops helped ship Sims back to Georgia, and there his master had him publicly whipped almost to death. This display of cruelty was meant more for Yankee eyes than for the poor remanded slave, a point made clear by the date chosen for the whipping: the anniversary of the Battles of Lexington and Concord.