Personal conflict, sectional reaction: The role of free speech in the caning of Charles Sumner

Texas Law Review

Volumn 85, Issue 6, 2007, Pages 1519-1552

  McCormick, Gregg M ^a  

^a NONE

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EID: 34547782690     PISSN: 00404411     EISSN: None     Source Type: Journal    
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References (332)

1. Newspaper articles cited in this article can be found at the Furman Project Web site: www.http.//history.furman.edu/editorials/see.py (follow Sumner hyperlink).
2. EDWARD BOYKIN, CONGRESS AND THE CIVIL WAR 220-27 (1955).
3. David E. Johnson, Assault in the Senate, AM. HIST., June 1999, at 52, 55.
4. Michael Kent Curtis, Teaching Free Speech from an Incomplete Fossil Record, 34 AKRON L. REV. 231, 246-47 (2000)
5. [hereinafter Curtis, Teaching].
6. See, e.g., Akhil Reed Amar & Daniel Widawsky, Commentary: Child Abuse as Slavery: A Thirteenth Amendment Response to Deshaney, 105 HARV. L. REV. 1359, 1366 & n.22 (1992)
7. [hereinafter Amar & Widawsky, Thirteenth Amendment] (mentioning an implication in Sumner's speech that Brooks's uncle was sleeping with his slaves and including Brooks's reaction to the implication);
8. Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193,1275 & n.346 (1992)
9. [hereinafter Amar, Fourteenth Amendment] (stating that the slave power could support itself "only through suppression of opposition speech" and including, in a footnote, that Brooks's attack on Sumner was "[p]erhaps the most dramatic incident" of suppression);
10. Michael Kent Curtis, John A. Bingham and the Story of American Liberty: The Lost Cause Meets the "Lost Clause," 36 AKRON L. REV. 617, 628 (2003)
11. [hereinafter Curtis, Bingham] (discussing John Bingham's indignant reaction to the caning);
12. Michael Kent Curtis, The 1859 Crisis Over Hinton Helper's Book, The Impending Crisis: Free Speech, Slavery, and Some Light on the Meaning of the First Section of the Fourteenth Amendment, 68 CHI.-K ENT L. REV. 1113, 1129 (1993)
13. [hereinafter Curtis, Helper] (discussing the progression of Southern suppression of Northern rights and including the caning of Sumner as one step in the escalation).
14. William E. Gienapp, The Crime Against Sumner: The Caning of Charles Sumner and the Rise of the Republican Party, 25 CIV. WAR HIST. 218 (1979).
15. Id. at 245.
16. Id. at 229-31.
17. I have examined various issues from forty different newspapers, many of which are cited in this Note. In compiling my newspaper sources, I relied heavily on the work of Furman University Professor Lloyd Benson and his students who maintain a database of secession era newspaper articles. The newspapers in the database are selected due to their relevance to succession era issues as well as their availability-they are not chosen based on their viewpoint on a particular issue. Determination of a newspaper's party affiliation was based on candidate and party support in state and national elections. In the event that I used newspapers that were not included in the Furman database, I used this same method to determine party affiliation.
18. I use antebellum to refer to the period just prior to the American Civil War.
19. See infra subparts VI(E), VI(F), VI(I).
20. See Curtis, Bingham, supra note 5, at 638 (noting that slaveholders used whipping and prison as means to suppress dissent).
21. Id.
22. Curtis, Helper, supra note 5, at 1123.
23. Curtis, Teaching, supra note 4, at 246-47;
24. Michael Kent Curtis, The 1837 Killing of Elijah Lovejoy by an Anti-Abolition Mob: Free Speech, Mobs, Republican Government, and the Privileges of American Citizens, 44 UCLA L. REV. 1109, 1123 (1997)
25. [hereinafter Curtis, Lovejoy].
26. Katherine Hessler, Early Efforts to Suppress Protest: Unwanted Abolitionist Speech, 7 B.U. PUB. INT. L.J. 185, 205 (1998).
27. Id. at 205-06.
28. Id.
29. Id. at 206.
30. Michael Kent Curtis, The Curious History of Attempts to Suppress Antislavery Speech, Press, and Petition in 1835-37, 89 NW. U. L. REV. 785, 835-36 (1995)
31. [hereinafter Curtis, Curious],
32. Id. at 836. Relying on the fact that the Act made it illegal to "unlawfully" detain mail and the persistence of state laws banning incendiary publications, the United States Attorney General upheld quarantine as a legitimate option, declaring that "it cannot be unlawful to detain that which it is unlawful to deliver." Yazoo City Post Office Case, 8 Op. Att'y Gen. 489, 494 (1858).
33. The act entailed a federal law prohibiting the circulation of "incendiary publications intended to instigate the slaves to insurrection." See Curtis, Curious, supra note 20, at 821.
34. Id. at 826 (including that the minority believed that Congress lacked the power to suppress the publications and the majority split on how to present the proposal to Congress).
35. Because he feared that the President's bill could allow the federal government to require as well as prohibit circulation of materials, Calhoun proposed that Congress pass a bill punishing federal officials who failed to follow state laws dictating which materials were prohibited. Id. at 825-26.
36. Id. at 835.
37. Curtis, Helper, supra note 5, at 1137.
38. Curtis, Curious, supra note 20, at 847-49.
39. WILLIAM LEE MILLER, ARGUING ABOUT SLAVERY: THE GREAT BATTLE IN THE UNITED STATES CONGRESS 476 (1996).
40. Editorial, The Gag-Rule Abolished, N.Y. TRIB., Dec. 5, 1844,
41. reprinted in MILLER, supra note 28, at 477.
42. In 1836, the Northern Democrats had voted for the Gag Rule 53-14. Id.
43. Id. at 482.
44. Id. at 482, 486.
45. Id.
46. Curtis, Lovejoy, supra note 15, at 1110.
47. Id.
48. Id.
49. Id.
50. Id. at 1111.
51. Id at. 1147.
52. Id. at 1116-11.
53. Gienapp, supra note 6, at 218, 231.
54. CONG. GLOBE, 34th Cong., 1st Sess. App. 124 (1856).
55. Gienapp, supra note 6, at 230.
56. ROBERT A. DIVINE ET AL., AMERICA PAST AND PRESENT 420 (1999).
57. See Gienapp, supra note 6, at 230 (listing numerous examples of Republican contempt for speech suppression in the Kansas Territory).
58. Curtis, Bingham, supra note 5, at 630.
59. See Charles Sumner, Mass. Senator, The Crime Against Kansas, Address to the United States Senate (May 20, 1856) [hereinafter Sumner, Crime Against Kansas], in 3 EDWARD L. PIERCE, MEMOIR AND LETTERS OF CHARLES SUMNER, 1845-1860, at 441-52 (Boston, Roberts Bros. 1894) (containing large excerpts of Sumner's speech which, though in parts digressing to criticize Brooks's uncle and the state of South Carolina, is substantively a criticism of the Kansas-Nebraska Act and current slave-power-driven events in Kansas);
60. see also BOYKIN, supra note 2, at 216 (describing Sumner's speech as the climax of the Kansas-Nebraska debate).
61. Sumner, Crime Against Kansas, supra note 47, at 441-52.
62. See infra subparts VI(CHF).
63. See infra subpart VI(I).
64. See Amar, Fourteenth Amendment, supra note 5, at 1275 n.346 (stating that Brooks's attack was "[p]erhaps the most dramatic incident" of Southern suppression of opposition speech).
65. Letter from Charles Sumner, Mass. Senator, to Theodore Parker, prominent Mass. abolitionist (May 17,1856), in PIERCE, supra note 47, at 438-39.
66. Sumner, Crime Against Kansas, supra note 47, at 449.
67. Id. at 449.
68. Id. at 446.
69. Id. at 450.
70. Amar & Widawsky, Thirteenth Amendment, supra note 5, at 1366.
71. Sumner, Crime Against Kansas, supra note 47, at 446.
72. T. LLOYD BENSON, THE CANING OF SENATOR SUMNER 122 (2004).
73. Johnson, supra note 3, at 55.
74. Id.
75. Gutta-percha is a juice from trees found on the Malaysian Archipelago that becomes concrete when dried. Brooks required the use of a cane ever since he was seriously wounded in the hip during a duel with a political rival. See 1 ENCYCLOPEDIA OF THE AMERICAN CIVIL WAR: A POLITICAL, SOCIAL, AND MILITARY HISTORY 288 (David S. Heidler & Jeanne T. Heidler ed., ABCCLIO 2000).
76. BOYKIN, supra note 2, at 226.
77. Sylvia D. Hoffert, The Brooks-Sumner Affair: Prelude to Civil War, 11 CIV. WAR TIMES ILLUSTRATED 6, 37 (1972).
78. DAVID DONALD, CHARLES SUMNER AND THE COMING OF THE CIVIL WAR 294 (1961). In a footnote Donald states that Sumner's account is the most believable due to his superb memory and the fact that Brooks's account sounds too "literary."
79. Id.
80. 2 JAMES FORD RHODES, HISTORY OF THE UNITED STATES 1850-1909, at 96 (MacMillan 1928) (1892).
81. DONALD, supra note 65, at 295;
82. RHODES, supra note 67, at 96.
83. BOYKIN, supra note 2, at 226.
84. Id. at 227;
85. DONALD, supra note 65, at 296-97.
86. 2 RHODES, supra note 67, at 97.
87. Brooks and Sumner, SPARTANBURG SPARTAN (South Carolina), May 29, 1856;
88. Congressional Ruffianism, ALBANY EVENING J., May 24, 1856.
89. Id.
90. Hoffert, supra note 64, at 40.
91. 2 RHODES, supra note 67, at 104.
92. DONALD, supra note 65, at 298.
93. 2 RHODES, supra note 67, at 104.
94. Id.
95. Id.
96. Id. Although Brooks was not expelled from the Senate, he resigned his seat one month later only to be reelected soon afterwards by an overwhelming majority of his constituents.
97. Id.
98. DONALD, supra note 65, at 308.
99. See infra Parts IV, V, VI.
100. Id.
101. See infra section IV(B)(2) and subparts IV(C), V(B), VI(B), VI(C), VI(G), VI(H), and VI(J).
102. See infra sections IV(A)(I) (Southerners) and IV(B)(I), subpart V(B) (Northern Democrats), and Part VI (Northern Republicans).
103. BENSON, supra note 59, at 157.
104. Id.
105. William E. Gienapp, "Politics Seem to Enter into Everything": Political Culture in the North, 1840-1860, in ESSAYS ON AMERICAN ANTEBELLUM POLITICS, 1840-1860, at 14, 41 (Stephen E. Maizlish & John J. Kushman eds., 1982).
106. BENSON, supra note 59, at 157.
107. See infra subparts VI(C)-(I).
108. DONALD, supra note 65, at 306. Papers that did not support Brooks included the Augusta Chronicle, Charlottesville Advocate (Va.), Clarksville Jeffersonian (Tenn.), Huntsville Southern Advocate (Ala.), Louisville Journal, Macon Telegraph, Memphis Bulletin, Minden Herald (La.), Mobile Advertiser (Ala.), and Wilmington Herald. Id. at 306 nn.2-3;
109. see also 2 RHODES, supra note 67, at 100 n.2.
110. See DONALD, supra note 65, at 306 (concluding that the other Southern papers that did not support the attack simply questioned the way in which Brooks snuck up on Sumner in the Senate Chamber while he was seated at his desk). For Southern papers that denounced the assault,
111. see id. at 306 n.2.
112. Id.
113. Id.
114. Washington Correspondence, CHARLESTON DAILY COURIER (S.C), May 26, 1856.
115. See Harlan Joel Gradin, Losing Control: The Caning of Charles Sumner and the Breakdown of Antebellum Political Culture 194-96 (1991) (unpublished Ph.D. dissertation, The University of North Carolina at Chapel Hill) (on file with author) (containing various letters and remarks by Southerners commenting on the slanderous nature of Sumner's speech).
116. See, e.g., Brooks and Sumner supra note 72 (stating that the speech "embraced libels upon Judge Butler");
117. Palmetto, Letter to the Editor, CHARLESTON MERCURY, May 28, 1856 (claiming that the speech was a "libel on South Carolina and a slander against Judge BUTLER").
118. The Brooks and Sumner Difficulty, MILLEDGEVILLE FED. UNION (Ga,), June 3, 1856.
119. See, e.g., Liberty of Speech, of the Press, and Freedom of Religion, RICHMOND ENQUIRER, June 3, 1856 (warning that abolitionists "will soon destroy all liberty of speech, if they employ it only to teach heresy, infidelity, licentiousness, and to stir up to deeds of violence");
120. Palmetto, supra note 97 (indicating that violence may be necessary to protect freedom of speech).
121. Palmetto, supra note 97. A "cudgel" is a short heavy stick or club.
122. June Crutchfield, The Northern Reaction to the Sumner-Brooks Affair 51 (March 1950) (unpublished M. A. dissertation, The University of Chicago) (on file with author).
123. Washington Correspondence, supra note 95.
124. Liberty of Speech, of the Press, and Freedom of Religion, supra note 99.
125. Id.
126. The Assault on Hon W T Butler, TEX. STATE GAZETTE (Austin), June 14, 1856.
127. Brooks and Sumner, supra note 72. The paper suggested that dueling was necessary to protect against "the foul tongue of the slanderer and braggart" which "under the shield of the Constitution and laws... is unhinged to vituperate and defame."
128. Id.
129. See, e.g.. Brooks and Sumner, supra note 72 (offering "sympathy and approval" to Brooks for Sumner's words directed at his uncle and for his retaliation);
130. Copt. Brooks' Castigation of Senator Sumner, EDGEFIELD ADVERTISER (S.C), May 28, 1856 (stating that Southerners had "borne insult long enough" and that Brooks's assault was "an act in good season");
131. Col. Brooks and Sumner, YORKVILLE ENQUIRER (S.C), May 29, 1856 (declaring that Brooks was "justified in promptly resenting insult and injury");
132. Palmetto, supra note 97 (stating that Sumner "richly deserved it");
133. Public Approval of Mr. Brooks, COLUMBIA S. CAROLINIAN, May 27, 1856 (claiming that "Brooks had not only the approval, but the hearty congratulations of the people of South Carolina");
134. Sumner Caned by Col. Brooks, GREENVILLE PATRIOT & MOUNTAINEER (S.C), May 29,1856 (assuming that the provocation for the attack was Sumner's speech and exclaiming, "[w]ell done for Col. BROOKS");
135. The Brooks and Sumner Difficulty, supra note 98 (although regretting the location, asserting that, due to his speech, Sumner "deserved a severe corporeal castigation");
136. The Washington Difficulty, LAURENSVTLLE HERALD (S.C), May 30, 1856 (claiming that Sumner's speech "brought upon him the merited chastisement").
137. CHARLESTON MERCURY, May 27, 1856.
138. Liberty of Speech, of the Press, and Freedom of Religion, supra note 99.
139. Palmetto, supra note 97.
140. Id.
141. Capt. Brooks ' Castigation of Senator Sumner, supra note 107.
142. BOYKIN, supra note 2, at 228.
143. Public Approval of Mr. Brooks, supra note 107.
144. Palmetto, supra note 97.
145. BOYKIN, supra note 2, at 229.
146. Washington Correspondence, supra note 95.
147. Sumner Caned by Col. Brooks, supra note 107.
148. Brooks and Sumner, supra note 72.
149. Capt. Brooks ' Castigation of Senator Sumner, supra note 107.
150. Washington Correspondence, supra note 95.
151. Brooks and Sumner, supra note 72.
152. Capt. Brooks' Castigation of Senator Sumner, supra note 107.
153. The Right View of the Subject, CHARLESTON MERCURY, May 30, 1856.
154. The Brooks Meeting, LAURENSVILLE HERALD (South Carolina), June 6, 1856.
155. The Washington Difficulty, supra note 107.
156. DONALD, supra note 65, at 298.
157. See CONG. GLOBE, 24th Cong., 1st Sess. 348 (1836) (indicating that a balancing test is needed between conflicting laws and that the laws of accommodation-including freedom of speech-must yield to laws of necessity including the need to preserve the union).
158. 1 THE WORKS OF JOHN C CALHOUN 73-74 (Richard K. Cralle ed., 1851) (including a statement from Calhoun that no matter how great freedom of speech may be, it will not overcome the majority's tendency towards abuse of power).
159. See supra notes 87-89 and accompanying text.
160. Gienapp, supra note 6, at 218-45.
161. Assault in the United States Senate Chamber, ILLINOIS ST. REG. (Springfield), May 26, 1856.
162. An Atrocious Speech and a Disgraceful Assault, DETROIT FREE PRESS, May 23, 1856.
163. See, e.g., Assault in the United States Senate Chamber, supra note 132 (describing the attack as regrettable yet stating, "when we take into account the provocation, much may be said in palliation of it");
164. Freedom in Debate, INDIANAPOLIS LOCOMOTIVE, May 23, 1856 (asserting that speeches such as Sumner's tend to "excite men to acts of lawless outrages that they would not think of in calmer moments");
165. Quid Pro Quo, CINCINNATI DAILY ENQUIRER, May 27 1856 (offering that those who "provoke" such attacks are "not without great blame");
166. Supremacy of the Law, BOSTON POST, May 29,1856 (suggesting that "[i]ntemperance of speech" led to the attack).
167. Supremacy of the Law, supra note 134.
168. See, e.g., Assault Upon Mr. Sumner, N.H. PATRIOT, May 28, 1856 (denouncing the attack with "unqualified reprehension");
169. Congressman Brooks ' Assault on Senator Sumner, PATRIOT & ST. GAZETTE (Montpelier, Vt.), May 30, 1856 (asserting that there is "no excuse" for the attack).
170. See, e.g., An Atrocious Speech and a Disgraceful Assault, supra note 133 (referring to the manner and spirit of the assault as "cowardly");
171. Assault in the United States Senate Chamber, supra note 132 (referring to the incident as regrettable and disgraceful);
172. Editorial, BOSTON POST, May 24, 1856 (condemning the attack as disgraceful).
173. Editorial, supra note 137.
174. Congressman Brooks ' Assault on Senator Sumner, supra note 136.
175. An Atrocious Speech and a Disgraceful Attack, supra note 133.
176. Freedom in Debate, supra note 134.
177. Assault in the United States Senate Chamber, supra note 132.
178. Editorial, supra note 137.
179. Freedom in Debate, supra note 134.
180. Editorial, supra note 137.
181. Gienapp, supra note 6, at 238.
182. See, e.g., THE SUMNER OUTRAGE: A FULL REPORT OF THE SPEECHES AT THE MEETING OF CITIZENS IN CAMBRIDGE, JUNE 2, 1856, IN REFERENCE TO THE ASSAULT ON SENATOR SUMNER, IN THE SENATE CHAMBER AT WASHINGTON 15, 19-20 (Cambridge, John Ford 1856)
183. [hereinafter THE SUMNER OUTRAGE] (including statements expressing regret over Sumner's use of "personalities" from two of six speakers at a Cambridge, Massachusetts indignity meeting);
184. Editorial, BOSTON ATLAS, May 23, 1856 (calling the speech "bold" and "vigorous");
185. Editorial, N.Y. TIMES, May 23, 1856 (referring to the speech as "one of the ablest ever made" in the Senate);
186. Editorial, N.Y. TRIB., May 24, 1856 (claiming that Sumner has "elevated the range ... of Senatorial debate");
187. Ruffianism at Washington, BUFF. MORNING EXPRESS, May 24, 1856 (calling the speech "cutting" but "truthful");
188. The Attack on Senator Sumner, PORTLAND ADVERTISER, May 24, 1856 (arguing that Sumner's speech was deserved retribution for the many caustic remarks directed at him by Southerners and Democrats);
189. The Ruffians in the Senate, ALBANY EVENING J., May 23, 1856 (claiming the speech was "toned down" and "altogether moderate").
190. But see Congressional Ruffianism, supra note 72 (commenting on the mollifying effects that, if slanderous, the speech would have upon the viciousness of the assault);
191. The Assault on Mr. Sumner, BALT. ADVERTISER, May 24, 1856 (setting aside its Republican affiliation and urging the House to take a more active role in preventing the "irritating personalities" which had become common in parliamentary discourse).
192. Editorial, N.Y. TRIB., May 23, 1856.
193. The Attack on Mr. Sumner, PITTSBURGH GAZETTE, May 24, 1856.
194. BOYKIN, supra note 2, at 228.
195. See, e.g., Ruffianism in Washington, supra note 147 (admitting that the speech was "bitter and cutting" but asserting that it "affords no justification for such an exhibition");
196. id. ("No severity of language-no violence of debate-could furnish any excuse for the assault....").
197. DONALD, supra note 65, at 299;
198. see also Editorial, N.Y. TRIB., May 24, 1856 ("There is no man now living who within the last five years has rendered the American People greater service or won for himself a nobler fame than Charles Sumner."). Prior to the attack Sumner's popularity was waning; thus, the attack secured his once shaky political future.
199. BOYKIN, supra note 2, at 228.
200. DONALD, supra note 65, at 311.
201. RHODES, supra note 67, at 99;
202. see also BENSON, supra note 59, at 176-79, 183 (describing two meetings and a resolution: (1) a meeting in Concord, Massachusetts in which Ralph Waldo Emerson condemned Southern barbarity and applauded Northern protection of freedom, (2) a meeting in which students at Union College in Schenectady, New York, May 27, 1856, passed a resolution condemning the attack as an attempt to "terrify the representatives of a free people in the exercise of their constitutional rights," and (3) a resolution of the Colored Citizens of Boston, June 6,1856, condemning the attack as an attempt to "crush out Free Speech");
203. DONALD, supra note 65, at 301 (describing a meeting at Faneuil Hall in Boston containing 5,000 people of many different parties); Reply to the Argus,
204. PORTLAND ADVERTISER, June 4, 1856 (defending the bipartisan intentions for a town meeting in Portland in which Democrats were not present);
205. The Sumner Outrage - Indignation Meeting at Boston, BALTIMORE ADVERTISER, May 26, 1856 (describing three meetings: (1) a meeting at Tremont Temple in Boston where citizens condemned the attack and claimed that the Free Soil Party rejoiced in it (although the Free Soil Party was ideologically similar to the Republican Party, many members of the new Republican party, including Charles Sumner, were recent defectors from the Free Soil Party), (2) a meeting in New York called by the Republican County Committee denouncing the attack, and (3) a meeting of students at Amherst College condemning the attack).
206. See, e.g., DONALD, supra note 65, at 300 (claiming that "[v]irtually every Northern city held a public meeting to protest the assault" and discussing meetings where Republicans sought out men with a Whig background to preside over the meetings while also claiming that "[f]or a moment it seemed as if political lines and past differences had been obliterated in Massachusetts");
207. Gienapp, supra note 6, at 226 (describing a Republican-organized meeting in Boston attended by many men "who had not been seen before in an antislavery or Republican gathering");
208. The Meeting Tomorrow Evening, ALBANY EVENING J., June 5, 1856 (advertising the next night's indignation meeting as being called by "men of all Parties").
209. Is the Kick Waited For?, PORTLAND ADVERTISER, June 6, 1856.
210. See supra note 154, and infra notes 158-60 and accompanying text.
211. DONALD, supra note 65, at 301 (quoting BOSTON ADVERTISER, May 25, 1856).
212. See THE SUMNER OUTRAGE, supra note 147, at 6-7, 9-12, 22-23, 28-30.
213. Id. Hon. J. D. Green, Professor Parker, Professor Huntington, and R. H. Dana Jr. Esq. included significant discussions on free speech issues as part of their speeches. Professor Parsons and Professor C C Felton focused on other issues.
214. Id. at 1.
215. PHILLIP S. PALUDAN, A COVENANT WITH DEATH: THE CONSTITUTION, LAW, AND EQUALITY IN THE CIVIL WAR ERA 124 (1975).
216. Id. at 123.
217. Id. at 124.
218. THE SUMNER OUTRAGE, supra note 147, at 11.
219. See supra note 154.
220. Congressional Ruffianism, supra note 72.
221. See Gradin, supra note 96, at 205 (citing letters from individual Northern citizens and a letter from the "Citizens of Providence" to Sumner expressing their outrage at Brooks's attack on Northerners' free speech rights).
222. See infra subparts VI(C), VI(I).
223. See infra note 207 and accompanying text;
224. see also PAUL F. BOLLER, JR., PRESIDENTIAL CAMPAIGNS 95 (rev. ed. 1996) (stating that during the campaign Republican stump speakers "made much of the fact" that Brooks had attacked Sumner for "simply expressing his opinions in the free forum of the U. S. Senate").
225. Curtis, Teaching, supra note 4, at 247.
226. See Editorial, supra note 148 (asking, "whether there is to be any more liberty of speech south of Mason and Dixon's line, even in the ten miles square of the District of Columbia [sic]");
227. The Meeting Tomorrow Evening, supra note 155 (asserting that the attack was "a blow aimed at the fundamental principle of Constitutional Liberty").
228. See CONG. GLOBE, 34th Cong., 1st Sess. App. 887-88 (July 10, 1856) (including the speech of A. C M. Pennington of New Jersey on the Assault by Mr. Brooks on Mr. Sumner in which he says that "[a] gross and unparalleled outrage has been committed upon the Constitution");
229. CONG. GLOBE, 34th Cong., 1st Sess. App. 625-35 (July 14, 1856) (containing assertions by Senator Henry Wilson that Brooks's actions were a "grave offense... against the... constitutional privileges of the House").
230. CONG. GLOBE, 34th Cong., 1st Sess. 9 (July 10, 1856).
231. Curtis, Bingham, supra note 5, at 627-68.
232. Gienapp, supra note 6, at 229.
233. The Assault on Mr. Sumner, BOSTON ATLAS, May 24, 1856.
234. Id.
235. N.Y. TIMES, June 3, 1856,
236. reprinted in Gienapp, supra note 6, at 230.
237. Remove the Capital, GAZETTE (Pittsburgh, Pa.), May 27, 1856.
238. Editorial, N.Y. TRIB., May 24, 1856;
239. see also The Attack on Senator Sumner, supra note 147 ("We know of nothing meaner or more cowardly than that which now calls itself Southern Chivalry.").
240. Gienapp, supra note 6, at 231;
241. see also DONALD, supra note 65, at 305 (stating that very few Southern papers denounced the assault).
242. Is the Kick Waited For?, supra note 156;
243. see also Justifying Club Law, GAZETTE (Pittsburgh, Pa.), June 11, 1856 (claiming that Northern indignation would not have been as intense if the South would have denounced the attack and had the Southern press not sustained Brooks).
244. Sermons in Brooks, ADVERTISER (Portland, Me.), June 3, 1856.
245. BOYKIN, supra note 2, at 228;
246. Hoffert, supra note 64, at 38.
247. See Editorial, supra note 148 (warning that after "[f]ailing to silence the North by threats... the South now resorts to actual violence");
248. Justifying Club Law, supra note 183 (claiming that the Southern press's support of Brooks indicates that, in the Southern mind, the club has been substituted for debate);
249. The Ruffians in the Senate, supra note 147 ("For the first time has the extreme discipline of the Plantation been introduced into the Senate of the United States.").
250. The Ruffians in the Senate, supra note 147;
251. see also Editorial, supra note 148 (warning, "we must expect that Northern men in Washington, whether members [of the Republican Party] or not, will be assaulted, wounded or killed").
252. Editorial, supra note 148.
253. Editorial, BOSTON ATLAS, May 23, 1856;
254. see also N.Y. TIMES, May 24, 1856 (asserting, "the revolver, the club and the bowie-knife are to be the weapons by which the champions of Slavery propose hereafter to silence their opponents").
255. DONALD, supra note 65, at 298 (citing Letter from H. A. Wise to Everett (MSS. Cf. Wilson (May 31, 1856), in THE COLLECTOR XLII525 (1927)).
256. BENSON, supra note 59, at 166-67.
257. 2 RHODES, supra note 67, at 104;
258. Gradin, supra note 96, at IS. These two sources disagree on the number of votes cast against Brooks: Rhodes states that six votes were cast against Brooks and Gradin states that only two votes were cast against him.
259. Is the Kick Waited For?, supra note 156.
260. The Attack on Senator Sumner, supra note 147.
261. Editorial, CINCINNATI GAZETTE, May 24, 1856,
262. reprinted in Gienapp, supra note 6, at 230.
263. Editorial, N.Y. TRIB., June 6, 1856.
264. Gienapp, supra note 6, at 232.
265. See, e.g., The News, ADVERTISER (Portland, Me.), May 23, 1856 ("How long will the people of the Free States tamely submit to such outrages?").
266. Editorial, N.Y. TRIB., May 24, 1856.
267. The Meeting Tomorrow Evening, supra note 155.
268. Ruffianism at Washington, supra note 147.
269. Editorial, SPRINGFIELD REPUBLICAN, June 14, 1856,
270. as reprinted in DONALD, supra note 65, at 302.
271. See, e.g., The Attack on Mr. Sumner, supra note 149 ("It can no longer be permitted that all the blows shall come from one side.").
272. See Gradin, supra note 96, at 189-90 (quoting letters from Northern citizens expressing their willingness to fight for their rights, including a letter from William Wetmore Story, the son of Justice Joseph Story, stating his preference for disunion over the current situation).
273. The Attack on Mr. Sumner, supra note 147.
274. But see Sermons in Brooks, supra note 184 (calling on Northerners to calmly defend their rights against slavery without "weapons of violence, but with earnest and kindly discussion, with dissemination of facts and with the freeman's weapon, the BALLOT-BOX").
275. Editorial, N.Y. TRIB., June 3, 1856,
276. reprinted in Gienapp, supra note 6, at 229;
277. see also The Attack on Senator Sumner, supra note 147 (asserting that Brooks's attack "is a perfect manifestation of the very essence and spirit of slavery, which can be met and conquered only by resistance").
278. Gienapp, supra note 6, at 229.
279. Id. at 233-34.
280. See, e.g., The Post and Mr. Sumner, PITTSBURGH GAZETTE, May 26, 1856 (accusing the Pittsburgh Post of defending Brooks's attack and falsifying the record).
281. The Provocation to the Assault, PORTLAND ADVERTISER, May 29, 1856;
282. see also Editorial, BOSTON ATLAS, June 3, 1856 (accusing the Boston Post of overlooking Brooks's role in the attack and focusing only on Sumner's speech);
283. The Assault on Mr. Sumner, supra note 177 (accusing the Democratic-leaning Boston Courier of misrepresenting Sumner's speech and hinting that it provoked the attack).
284. Editorial, ALBANY EVENING J., June 5, 1856.
285. See Justifying Club Law, supra note 183 ("We do not see why there is any need for more-such scenes to unite the people of the North, when the votes, in Congress, and the whole spirit of the Democratic press, and the total silence of Democratic speakers, endorse the murderer Herbert [a Representative from California who murdered an Irish waiter after he demanded breakfast and the waiter informed him that breakfast was no longer being served], and the cowardly ruffian, Brooks.");
286. Editorial, N.Y. TRIB., May 24, 1856 ("It is high time that this People should take a stand not only against the immediate perpetrators of ruffian assaults but against their confederates and apologists in public life and in the Press.").
287. See KENNETH M. STAMPP, AMERICA IN 1857: A NATION ON THE BRINK 11 (1990) (claiming that during Sumner's three-year recovery, his Senate seat served the Republican Party "more effectively, perhaps, than it otherwise could have");
288. Johnson, supra note 3, at 56 ("To many Northerners, Sumner's empty senate seat became a symbol of the antislavery movement, freedom of speech, civilized discourse, and the depravity of slave holding Southerners.").
289. Reply to the Providence Post, ALBANY EVENING J., May 31, 1856.
290. Gienapp, supra note 6, at 239.
291. Id.
292. Palmetto, supra note 97;
293. Washington Correspondence, supra note 95.
294. Benson, supra note 59, at 172-73.
295. See supra notes 118-22 and accompanying text.
296. Congressman Brooks ' Assault on Senator Sumner, supra note 136.
297. Quid Pro Quo, supra note 134.
298. True, PATRIOT & ST. GAZETTE (Montpelier, Vt.), June 13, 1856.
299. Gienapp, supra note 6, at 229.
300. Id.
301. Amar, Fourteenth Amendment, supra note 5, at 1275 n.346.
302. DONALD, supra note 65, at 304.
303. Editorial, N.Y. TRIB., May 24, 1856.
304. DONALD, supra note 65, at 311.
305. Sermons in Brooks, supra note 184.
306. Gienapp, supra note 6, at 243.
307. The Kansas-Nebraska Act was a controversial attempt led by Democratic Senator Stephen Douglas to organize the territory west of Missouri and Iowa based on popular sovereignty despite the fact that the area was north of the Missouri Compromise line and therefore designated as free territory by the Missouri Compromise. DIVINE ET AL., supra note 44, at 418-19. In its final form, which included an amendment specifically repealing the Missouri Compromise, the bill passed the Senate and House but with one-half of Northern Democrats voting against it.
308. Id. at 419. The bill was a powerful step in destroying the unity of the Democratic party.
309. Id. at 419-20.
310. Id. at 420.
311. Id. at 421.
312. Letter from Duncan Edward Everett (Sept. 29, 1856), in Gienapp, supra note 6, at 244. Everett was a witness and is described by Gienapp as a prominent "level headed observer" and is quoted many times in Gienapp's paper.
313. DONALD, supra note 65, at 302;
314. Justifying Club Law, supra note 183.
315. DIVINE ET AL., supra note 44, at 423-24.
316. Id. at 424. The climax of the Kansas civil war occurred as pro-slavery factions attacked the free-state capital at Lawrence, Kansas. Republicans portrayed the attack-which resulted in significant property damage but no loss of life-as "the sack of Lawrence."
317. Id.
318. Id. at 424.
319. Id. at 424;
320. Gienapp, supra note 6, at 242.
321. Gienapp, supra note 6, at 239.
322. DIVINE ET AL., supra note 44, at 425.
323. See BOLLER, supra note 170, at 94 (stating that the Republicans showed "amazing strength" and that many people regarded it as a "victorious defeat").
324. Indignities to Mr. Sumner Threatened, N.Y. TIMES, June 11, 1860.
325. See, e.g.. Republican Mass Meeting at the Cooper Institute, Speech of Hon. Charles Sumner, N.Y. TIMES, July 12, 1860 (reporting that the president of the Boston Young Men's Republican Union introduced Sumner as someone who "stood up manfully for the freedom of speech").
326. Curtis, Helper, supra note 5, at 1147, 1151.
327. Akhil Reed Amar, The David C. Baum Lecture: Abraham Lincoln and the American Union, 2001 U. ILL, L. REV. 1109, 1120.
328. Akhil Reed Amar, The Supreme Court, 1999 Term-Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 58 (2000).
329. Id.
330. Steven J. Heyman, Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression, 78 B.U. L. REV. 1275, 1298 (1998).
331. Id.
332. Amar, supra note 257, at 58.