Around six o’clock on January 17, 1856, proslavery men in Easton, Kansas Territory, made their first serious go at the free state polls. They had come up and made threats before, but the close of the election and consequent dispersal of armed free state men emboldened them. They rode up and demanded the ballot box, at which point a group of free state men came out and formed a line against them. Joseph Bird and Henry Adams, two of the defenders, gave fairly restrained testimony to the Howard Committee about the confrontation. J.C. Green, another in the line that evening, told a bit more:
Towards night a party of men came up within a hundred yards of Mr. Minard’s house, where the election was held. They appeared to be generally armed, and were yelling.
Green and the others made their appearance
and told them they must come no further. They then stopped and used a good deal of abusive language. The one who seemed to be in command of the party coming up, told them to charge several times, but they did not do so. After standing a short time, they turned and went back.
Stephen Sparks, another man on the line outside Minard’s and of whom we shall hear more, agreed:
I heard some one of the crowd, who appeared to be the leader, say, “Charge on them, God-damn them! I ain’t afraid!” About this time our men had nearly formed themselves from the door to the road. Upon seeing our force they halted, and returned without further difficulty.
David Rice Atchison (D-MO)
The proslavery party in Kansas often come across like deranged maniacs, particularly the rank and file who we see almost exclusively through the accounts of their enemies. Prominent men had more to lose and so often acted with a small measure of circumspection. David Rice Atchison, who promised to murder every abolitionist in Kansas, ultimately backed down at Lawrence and worked to defuse the situation. He must have hated it and fumed at how those blasted abolitionists outmaneuvered him, but Bourbon Dave helped reel in his boys all the same.
Green doesn’t name the leader of the proslavery men; he may have been a locally prominent individual who also had much to lose. If he did, he thought Easton a hill worth dying on. His men disagreed. The folk wisdom about bullies seems pertinent: they didn’t mind an unfair fight but the other kind could get one of them killed. Maybe some of them had molested George Wetherell up at Leavenworth the month prior or gone off in hopes of destroying Lawrence, but in both cases they expected no fight or a very uneven one.
They might, in fact, have expected something more like disciplining slaves. An enslaved person could not fight back. Failing that, Southern communities often policed white dissenters from slavery by mob action. With the exception of Patrick Laughlin’s killing of Samuel Collins, every violent scrape that I’ve yet looked into in Kansas came in about much like that: an uneven fight from the beginning where the victim had few friends to come to his defense.
We left the Leavenworth election of January 15, 1856 over in Easton on January 17. The change of venue and date put proslavery forces momentarily off their game, allowing for some genuine free state voting. When they tried to make a roaring comeback, armed free state men warned them off. Despite repeated threats to the polls, slavery’s friends ended up harassing people going to and fro rather than putting on the customary violence. That turned away some voters, but failed to end the election.
In the days before telephones and the internet, an election required more than just holding the vote. Actual people had to count the ballots and then deliver the results. This usually happened after the polls closed, at which point the free state men who had secured them would also disperse. According to William Phillips, “some eighteen or twenty” present realized the obvious weak spot in their security and stayed behind to guard against the seizure of the ballot box. If they had anything to say about it, the proslavery men would not make off with it as they had back in December.
In the early part of the night an attack was expected, and the free-state men were prepared for it. They knew that messengers had gone to Kickapoo for the Kickapoo Rangers, and an attack was looked for whenever they arrived.
I don’t think the Kickapoo Rangers have appeared on this blog before. In them, we have a group of genuine Kansans organized into a proslavery paramilitary. The Rangers must have taken the scenic route, as the night wore on without an appearance. The proslavery men nearer by, just down at Dawson’s store, appeared in a more timely manner. Joseph Bird, and others, saw it firsthand and told their stories to the Howard Committee:
about six o’clock at night, a large party of horsemen, I should think forty or fifty, not more, came down towards the house, and a few of them, some five or six, demanded the ballot-box. They were not answered right away, and they threatened to come and take the ballot-box; that they would have it, if they had to shoot every man there, or something to that effect. I do not remember the precise words they used.
Phillips’ eighteen to twenty guards then rolled out, forming a line in front of Minard’s house.
Henry Adams, there with Bird, put the proslavery men at “twenty-five or thirty” when he and the others came out with their guns.
Considerable altercation took place back and forth, but I do not recollect exactly what was said. Some of our party were considerably excited and I thought were going rather too far, and Mr. Minard and I were apprehensive they might fire upon this party coming up, and we urged them not to do so, to commit no act of hostility except in self-defence. After some parleying, and, I thought, urging by the leader of the party coming up, to get his men over, they retired without doing anything.
They proslavery men did retreat, but they left watchers on the house. They hadn’t given up yet.
The mayor of Leavenworth would have nothing of any free state election there. If antislavery Kansans wanted to elect officers to their new government, then they would not do it under his watch. He had a riot just last month, thank you. If the 1st Cavalry didn’t ride to his rescue then, he could hardly expect it this time. The free state men didn’t take that laying down; they relocated and rescheduled for January 17, 1856, and twelve miles away at Easton. The change, distance, and deep snow kept many away but about a hundred did appear and vote.
The relocation went off well enough to forestall a major, organized attempt to prevent the election. William Phillips reports that on the evening prior
a small number of pro-slavery men, who had known that an election was to be held at Mr. Minard’s, attempted to get possession of the place so as to prevent it, but were driven off.
One must assume that the driving off involved some credible threats.
As the small band attests, news did get out. Even without advance warning, anybody could see unusual activity in and around Easton. Proslavery men soon gathered. With armed parties on both sides and an election going on, the law of Kansas politics demanded trouble ensue:
Many of the free-state men who went to the polls took guns with them. A small party of these, while going through Easton on their way to the polls, were attacked by a larger number of persons, who had congregated in the store of a pro-slavery man named Dawson. By these men the free-state voters in question were disarmed and driven back in a different direction from the polls.
In less than a year, antislavery Kansans had gone from conspicuously unarmed at the polls to packing heat as a matter of course. But guns don’t work magic. The larger band successfully disarmed the smaller and kept them from voting.
The proslavery men did one better than turning away a small band of voters:
During the day parties of pro-slavery men, who were congregating about Easton, went over to the place where the voting was going on, and threatened to attack the house. Seeing that the free-state men were ready to defend themselves, they did not attack. These threatening visits were made several times during the day, and on each occasion the most violent threats were made; but they dared not attack. During the day voters going to or coming from the polls were molested, and disarmed or driven back.
If you could get to Minard’s house, you could vote. Antislavery Kansans naturally collected there and came in sufficient numbers and arms to deter the customary attack. The commute presented the larger hazard, as they couldn’t lock down the whole vicinity. The small band turned away testifies to that much. Where free soilers could warn off proslavery men near the voting, the tables turned abroad.
Gentle Readers, for the past few months yours truly has affirmed a certain stereotype of his people by obsessing over a musical. The Ten Dollar Founding Father without a Father charmed me sufficiently that I spent a fair portion of that time listening to the Ron Chernow biography that inspired the show. I don’t normally care for biographies. The author has to have so much sympathy for the subject that it frequently comes at the expense of a balanced understanding. This goes double for any subject generally revered. Double it again for anybody called a founding father. I expected that I would give up on Alexander Hamilton within a few hours. Maybe the musical primed me for it, and I certainly enjoyed picking out turns of phrase that became lyrics, but I ended up listening to every word and enjoying almost every moment. In the course of writing this I stopped and looked at the prices for a used copy of the book so I could have the footnotes.
Chernow wrote a really good, sometimes even funny[1], book. His affection for the Hamiltons, husband and wife alike, comes across from the first pages. Probably on some points a student of the founding era, or a Jefferson partisan, would have cause to complain. I lack either of those credentials, but I have spent a small amount of my time studying slavery politics. There Chernow roused my skepticism. Whenever slavery comes up, he calls Alexander Hamilton an abolitionist. The facts he cites to support that claim don’t really do the job, by late Antebellum standards.
That set me to thinking. Hamilton clearly opposed slavery. Chernow makes that case quite well. Furthermore, his opposition went beyond personal sentiment. When negotiating with British representatives as Washington’s ex officio Secretary of State before Thomas Jefferson returned from France, Hamilton essentially ignored one of the pressing issues between the countries: compensation for slaves lost during the Revolution. I haven’t written much about this issue in the past, but between the Revolution and the War of 1812, American diplomats demanded cash for slaves from the United Kingdom for decades. Even latter-day antislavery heroes like John Quincy Adams pressed the issue as a matter of policy. Hamilton, to my knowledge uniquely, did not and specifically cast his opposition in terms of moral abhorrence to bondage. One might pass over that as a partisan dig at Hamilton’s southern opponents. Federalists did take up antislavery in part to score points against Jefferson’s Republicans, especially once they largely gave up on building a party in the South. But Hamilton took his stand before the parties developed.
Opposition to slavery doesn’t necessarily turn one into an abolitionist, though. While no Thomas Jefferson, Hamilton married into a slaveholding family and dealt personally in slaves. Specifically, it seems that he bought and traded them on behalf of his in-laws. When Angelica Church (Elizabeth Hamilton’s sister) and her husband returned from Britain, he bought real estate and slaves on their behalf. Chernow doesn’t think that Hamilton ever bought a slave for himself, but it seems likely that he owned slaves on paper while waiting on his sister-in-law’s return.
You could join the New York Manumission Society, and Hamilton did, and still do all that. The Society’s program called for gradual emancipation, nothing at all like the immediate end to slavery preached by later generations of abolitionists. If Chernow ever has Hamilton advocate the immediate course, I missed it. By any reasonable standard, calling him an abolitionist seems in outright defiance of the facts.
By this I don’t mean to argue that we should necessarily consider Hamilton especially proslavery. Rather he seems like a fairly normal antislavery American. He makes his compromises, usually to the detriment or enslaved Americans, but also preferred and enacted policies that he understood as injurious to slavery and looking to its ultimate end. He didn’t publicize his views on the subject at length, a conspicuous rarity for Hamilton, but he did more than make excuses and fret impotently. He probably benefited from, and might directly have used, slave labor himself. But he didn’t organize his entire economic life around it as any number of famous founders did.
Thomas Jefferson
We can stop here and declare Chernow’s argument a specimen of the hagiographer’s craft. Hamilton did not advocate anything like what the abolitionists did and so doesn’t warrant the title. However, this requires us to read late Antebellum distinctions back into the eighteenth century. In more stark cases, like Jefferson’s, that makes some sense. The Sage of Monticello’s policies amounted to slavery forever and must stand in the context of his hundreds of slaves. Hamilton occupies a more ambiguous space. In light of that, we ought to consider just how few people argued for immediate abolition in Hamilton’s time. To my admittedly incomplete knowledge, that position didn’t become politically significant until the 1830s. While this doesn’t make Hamilton into an antislavery radical, even by period standards, it does suggest a political spectrum more tilted toward slavery and with less conceptual space for abolition than would exist in later decades. Even John Adams, generally considered a fairly strong antislavery founder, preached against immediate abolition on the grounds that it might spark a slave revolt. Hamilton surely belongs closer to him, for all that the two men would dislike one another’s company[2], than to Jefferson.
Considering all of that, Chernow still exaggerated Hamilton’s antislavery credentials. Hamilton advocated no abolitionism, but he did preach and practice at least moderate antislavery politics. They didn’t occupy a central position in his agenda. He often compromised in slavery’s favor. He traded in slaves on behalf of others. But, unlike others, his scruples served as more than a vehicle to salve his conscience while advocating the practical extension of human bondage in perpetuity. Hamilton’s record doesn’t invite easy explanation, admitting many complexities and contradictions, but he deserves some credit for it.
[1] Seriously, go read the Republican responses to the Reynolds Pamphlet and try to keep a straight face.
We left Kansas only slightly bled. The proslavery mob at Leavenworth seized George Wetherell and supplied him generously with kicks and jumps on the back. Days later, they came back and destroyed the Territorial Register, the local free state paper. In both cases, the proslavery side had little in the way of forcible opposition and largely did its work in a straightforward, direct manner. Despite a close call at Lawrence, Kansas had yet to see anything like a pitched battle between bands of proslavery and free state Kansans. With a fairly miserable winter settling in, one might expect passions to cool and everyone to hole up until spring.
The free state movement had an election scheduled. On December 15, Kansas approved the constitution drafted at Topeka and the associated black law. That meant that the territorial government now had offices in need of filling. The next round of elections took place a month later, on January 15, 1856. We have, Gentle Readers, made it out of 1855. For the most part, the proslavery men seem to have followed past precedent and simply ignored free state elections. They had no legal standing, so who cared? Those living in and around Leavenworth had a different precedent to follow, written in their footprints on George Wetherell and the river mud on Territorial Register’s type.
Mayor Slocum of Leavenworth knew all about that precedent. He sent to Fort Leavenworth for help suppressing the mob back in December, to no avail. Rather than hazard a repeat of that performance, he
ordered that no election be held in Leavenworth city; and, as it was well known that any number of ruffians could be got from the adjoining state to enforce that order, it was not attempted.
William Phillips, who faulted his free state comrades for insufficient martial valor back in December, appreciated their plight better the next month. It may have helped that they chose to have the election anyway. As they didn’t dare Leavenworth, they removed to Easton, “some twelve miles distant” to have their vote two days later.
Eastin did not make for an ideal polling place:
by this arrangement it would be needles sot add that comparatively few could go to the polls through a deep snow in such severe weather, well knowing, as they did, that the chances for a fight even there were pretty good. In fact, while Leavenworth could have polled upwards of five hundred free-state votes, little more than a hundred were polled at Easton.
Per Phillips, the free state party arranged things with enough subtlety that the proslavery men didn’t have a plan in place to disrupt the election. They had to improvise.
Samuel Curtis laid out athoroughgoingdefinition of treason for his Boston grand jury back on October 15, 1851. You had to conspire to resist the laws of the United States, or their enforcement. You must use or threaten force. You didn’t have to plan far ahead or come in full military panoply, but you did have to intend to oppose execution of at least one law in all cases rather than just in a particular instance. Through all of this, Curtis has largely written in the context of the act itself and immediate perpetrators, but he did specify that treason came out of conspiracies and combinations. How far could those reach, legally speaking?
It should be known also, that treason may be committed by those not personally present at the immediate scene of violence. If a body of men be actually assembled to effect by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered guilty of treason.
That spelled bad news for vigilance committees out to aid fugitive slaves in their escape. If we take the laws of Kansas as those of the United States, an arguable proposition but probably close enough for proslavery Kansans, then it also implicated the entire Kansas Legion. They had a military band aimed at resisting the territory’s laws, which they hardly needed unless they foresaw the use of force to resist. The Legion’s constitution specified that once a group reached a thirty men, it must have a military character. Jacob Branson, his rescuer Samuel Wood, and likely everybody of consequence in the free state movement had membership in such a combination.
The sudden burst of warrants and eager exploitation of the crisis to seize the free state leaders in Lawrence still looks like an opportunistic fishing expedition in light of this, but one with at least a plausible legal leg to stand on. Legal niceties didn’t bother proslavery Kansans and their Missourian allies all that much, but they could honestly say they observed some of the forms.
Curtis spelled it out in words that anticipate free state political activity almost word for word:
Influential persons cannot form associations to resist the law by violence, excite the passions of ignorant and unreflecting, or desperate men, incite them to action, supply them with weapons, and then retire and await in safety the result of the violence which they themselves have caused. To permit this, would not only be inconsistent with sound policy, but with a due regard to the just responsibilities of men. The law does not permit it. They who have the wickedness to plan and incite and aid, and who perform any part however minute, are justly deemed guilty
Samuel Jones
Set aside the fact that Curtis had antislavery efforts in mind when he wrote all of this and I don’t see a great deal one could argue with. We might not reach for treason so quickly today as Curtis did, preferring some other offense, but his reasoning on each point appears sound and practical. His definitions don’t perfectly fit events in Kansas, but they come close. Given the real fear of slave revolt and already-extant inattention to the finer points of law, I come away from this with the strong sense that when most proslavery men said treason, they meant it. It served their purposes to make the claim, and some of the lawyers probably knew better, but it all fits together too well to read the accusations as entirely cynical.
Yesterday we looked at the first prong of Samuel Curtis’ test for treason as it related to fugitive slave rescues in his own Boston and, later on, to the events precipitating the Wakarusa War in Kansas. Curtis specified that one could levy war against the United States by any organized attempt to thwart the execution or enforcement of its laws by force. The fugitive rescuers surely did that. The free state movement, as of the end of 1855, had done the same if one counts the laws of Kansas as laws of the United States. If one does not, then they remained innocent. The Kansas-Nebraska Act, as customary for laws organizing territories, granted lawmaking authority to the territorial government with the proviso that Congress retained the power to review and annul such laws. Whether that makes them federal or not probably depends on where one stands. In the strictest reading, they don’t qualify. Functionally, however, they might come close enough to make little difference.
What of the nature of combinations to resist the laws, then? While the free state movement had a long paper trail, when Samuel Wood roused some men and came to Jacob Branson’s rescue he appears to have acted on his own authority. He led a militia company, but he made no effort to secure permission from the free state leadership to mount the rescue. Did relatively spontaneous acts count as conspiracy?
Curtis thought so:
Such a conspiracy may be formed before the individuals assemble to act, and they may come together to act pursuant to it; or it may be formed when they have assembled, and immediately before they act. The time is not essential. All that is necessary is, that being assembled, they should act in forcible opposition to a law few the United States, pursuant to a common design to prevent the execution of that law, in any case within their reach.
You didn’t have to plan ahead; you could treason on short notice. Curtis doubtless had in mind heat of the moment efforts to free slaves who dared steal their bodies from their rightful owners, but the relief of Branson counted too.
Of course, levying war still meant something more closely approximating war. You had to use “actual force” to graduate from talk to treason. What counted as that force? The Army of Northern Virginia qualifies and Samuel Wood’s band operated in similar ways, if on a vastly smaller scale. How big and organized did a treasonous conspiracy have to get? Not very:
It is not necessary that there should be any military array, or weapons, nor that any personal injury should be inflicted on the officers of the law. If a hostile army should surround a body of troops of the United States, and the latter should lay down their arms and submit, it cannot be doubted that it would constitute an overt act of levying war, though no shot was fired or blow struck.
Samuel Newitt Wood
Nobody shot Samuel Jones, but the threat of force worked just as well. If we grant that for the people Jones and his allies intimidated at the Kansas polls, then we can’t exclude the same tactics used against them. Samuel Wood and his men came out with guns, in a rush, outnumbering Jones and demanding his prisoner. It didn’t take a genius or a clairvoyant to know what would probably happen if he refused to yield up Branson. As Curtis wrote:
The presence of numbers who manifest an intent to use force, if found requisite to obtain their dmeands, may compel submission to that force, which is present and ready to inflict injury, and which may thus be effectually used to oppose the execution of the law. But, unfortunately, it will not often be necessary to apply this principle, since actual violence, and eve murder, are the natural and almost inseparable attendants of this great crime.
To cast a net broad enough to consider Jones acting under the laws of the United States also requires us to sweep up Kansas poll workers. Unlike the Sheriff, they had the letter of the Kansas-Nebraska Act on their side. If it did not constitute a law of the Untied States, then no act of Congress could. Jones’ menacing of them looks at least as much like treason as Wood and company menacing him. Neither incident resulted in violence, contrary to Curtis’ expectations, but they didn’t need to.
In October, 1851, Samuel Curtis gave his federal grand jury a definition of treason (PDF). He expected, in a Boston where antislavery Americans had lately rescued a few fugitiveslaves from those who aimed to steal them back to slavery, that the jury might need to know. Curtis laid out a three point test: The accused must conspire. That conspiracy must involve obstructing the enforcement of a law of the United States. The conspiracy must then use force to that end. All of these applied to Bostonians who had saved enslaved Americans from recapture. Together, these things constituted levying war against the United States. They might, depending on how one read them, apply to the free state movement in Kansas as well.
Curtis did better than nineteenth century bullet points. He wanted his jurors to understand the law thoroughly and so gave a further explanation that runs to about a page of printed text. That section opened with an important qualifier:
It is not enough that the purpose of the combination is to oppose the execution of a law in some particular case, and in that only. If a person against whom process has issued from a court of the United States, should assemble and arm his friends forcibly to prevent an arrest, and in pursuance of such design, resistance should be made by those thus assembled, they would be guilty of a very high crime, but it would not be treason
In a Bostonian context, this means one could throw together to rescue Shadrach Minkins or Anthony Burns and not commit treason. Over in Kansas, Samuel Jones had a warrant to arrest Jacob Branson. He had that warrant under the authority of the federally-constituted territorial government. I don’t know if a territorial court operating under that law counts as a court of the United States rather than one of Kansas Territory, but even granting Jones the point Branson and his rescuers might fall short of Curtis’ definition of treason. They opposed the execution of the law, by force, in one particular case.
Samuel Newitt Wood
However, if the individuals combined
forcibly to prevent any person from being arrested under that law, and with such intent, force is used by them for that purpose, they are guilty of treason.
Here Samuel Newitt Wood and company get into deeper trouble. They as much as told Jones that they would rescue anybody he came after with a warrant. Though the people of Lawrence tried to disavow the rescue of Branson, they had made rhetorical pledges to resist Kansas’ laws too. Their resistance didn’t extent to force, yet. They took pains to emphasize they resisted the laws of Kansas, not the United States. Charles Robinson, at least, understood resisting Wilson Shannon by force as resisting federal authority. Whether he meant that as a precise legal judgment or just a recognition of how Shannon might treat things, the ambiguity remains.
Robert E. Lee, slave catcher
One might argue that the resistance to one law doesn’t really count, just as resisting on behalf of one person doesn’t count. Curtis anticipated the argument and would have nothing of it:
The law does not distinguish between a purpose to prevent the execution of one, or several, or all laws. Indeed, such a distinction would be found impracticable, if it were attempted. If this crime could not be committed by forcibly resisting one law, how many laws should be thus resisted to constitute it? Should it be two, or three, or what particular number short of all? And if all, how easy would it be for the worst of treason to escape punishment, simply by excepting out of the treasonable design, some one law.
The judge has a point. If the Army of Northern Virginia scrupulously held to the fugitive slave law, and they did so enthusiastically when they had the chance in Pennsylvania, then that hardly made them innocent of treason. Robert E. Lee commanded, among other things, the largest slave patrol in American history.
Once, we lived among giants. We had it better and, to say it plainly, Americans had it whiter. Now small men, and even women, pretend to lead us. How can we endure with such mediocrities? Surely all the good not yet gone must soon perish, unless a new generation of heroes rise to save us all. Someone from outside, someone pure, someone who can break the deadlock and turn back time, must come before the last light of the world flickers out. Pick any metric you like. Americans now distrust political opponents more. We understand compromise as a situation where we get more than we give. Politicians disregard conventional norms in the quest for partisan advantage. We used to come together, but now we draw apart. We disregard civility and replace reason with passion.
For the sake of argument, let’s grant all of those things. Spending some time with the nineteenth century makes present fretting sound more than a bit overwrought. They had a war; we have mostly harsh rhetoric. I don’t mean to play Dr. Pangloss here, pretending that in every way we live in the best possible world. Nor shall I argue that every change to the American political scene has turned out for the better. On some points, though not many, I agree with those wringing their hands. But let’s talk history.
For as long as we have left a written record, people have fretted about their decline from an imagined golden age. You can read it on Sumerian tablets. In recent American discourse, we talk polarization: How can we go forward if we can’t agree on anything? Can the country survive these divisions? Something must give. The example of Republican Rome suggests that a strongman or two will come around, with flagrant disregard for constitutional conventions and strictures, and inaugurate a dictatorship.
I have no better a crystal ball than you do; I can’t tell you that we’ve gone down the Roman road past a point of no return. Nor can I find it in myself to feel any deep sympathy for the Roman Republic. People have mourned its death for two thousand years, always convinced that in their times the fall has come again. To still treat it, after all these centuries, as the acme of civic virtue more troubles than impresses me. Why should we measure ourselves so closely against such a long extinct state? We have other paranoid, superstitious, and genocidal regimes we could admire in its stead.
We might do better to ask not if we have followed the example of Antique Rome, staggering toward Caesar and Octavian, so much as that of Weimar Germany. People invoke fascism as a slur all the time, often with little justification. The more sophisticated will sometimes say that it amounts to nothing more than that slur. The academy once leaned in that direction, but in recent decades scholarship suggests that we should take fascism seriously as its own thing. It differs from both the Left and Right, if dramatically more so the Left. Fascists often deploy leftist-influenced rhetoric, but regularly come to power with the more mainstream Right as a coalition partner. Establishment conservatives disdained Hitler and his Nazis as clowns and fanatics, but cooperated in their rise under the premise that they could control the brownshirt hordes. Once in power, the party did all it could to convince the German Right that it had nothing to fear. The German Left? They would soon have camps for that. In the interim, the Nazis had fists, knives, clubs, and bullets. The same conservatives that cooperated in the Nazi party’s rise didn’t mind that outcome much at all.
Among American laypeople, and I count myself as one on this subject, the rise of the Nazi party rarely elicits much thought. The line runs straight from Versailles to hyper-inflation to Hitler, neglecting that the Weimar government beat inflation back long before the Austrian had a place in the government. Now and then one hears about Nazi theatricality, always with the proviso that the speaker’s own nation would never go for such foolishness. That all nations have their forms of political theater, all of them similarly absurd and frequently just as linked to militarism, rarely enters into it. If we admitted that they can occasionally move us, even cynical bloggers ordinarily repulsed by even far more mild expressions of nationalism, then we would have to also admit that the national character we darkly muse upon exists in ourselves as well as strange countries beyond the sea.
Focusing on the theater lets us ignore the violence in the rise of fascist movements, even as we acknowledge the conspicuous violence of fascists in governance. We remember that violence directed at the people the Nazi regime made its enemies: Jews, Slaves, Roma, Sinti, anybody not heterosexual, the list goes on. Somewhere in the final section, you’ll reach the party’s more ordinary political opponents. Given the scale and intensity of the Nazi campaigns to exterminate the more famous victims, one can’t fault the standard narrative for emphasizing them. But during the Nazi party’s rise they spent far more time in street battles with the German Left, largely in the person of Germany’s communist parties. They and they alone could crush the degenerate forces that had betrayed Germany and deprived the nation of its greatness. They alone could undo the humiliations of Versailles and sweep aside the decayed, failed Weimar government.
To some degree, this language naturally rises from any group that has experienced power and then its loss. White male Americans once had almost all the power the a culture could grant. Now we have less, if not very much less. Most of us don’t like it. The resentment of the those forced to share what they once had all to themselves burns hot and nothing attacks one’s privileged identity more thoroughly than equality. Yet that alone doesn’t necessitate a diagnosis of fascism.
What does make for fascism? Robert Paxton, whose Anatomy of Fascism I draw upon for this, suggests setting aside the rhetoric and looking at fascism as a form of political behavior. I endorse that approach a wholeheartedly when discussing American constitutional theories, so I can hardly object now. Paxton eschews a strict definition of fascism on the grounds that historical fascist movements have, despite their reputations, little interest in ideology as such. Thus he looks for what he calls “mobilizing passions” which push people into fascism:
a sense of overwhelming crisis beyond the reach of any traditional solutions
One can find invocations of crisis in any culture at almost any time, but Paxton means more than rhetorical discontent or polemical fireworks. A crisis, even a real one, doesn’t in itself cross the line. Rather the crisis must demand solutions, at least in the minds of the believers, from beyond the ambit of conventional politics. Those solutions aim toward a restoration, but don’t hearken back to older methods.
Members of the Reconstruction Klan in costume
Paxton concerns himself specifically with late nineteenth and early twentieth century Europe, but doesn’t entirely neglect earlier movements. Another group of people in a major democracy had that sense of crisis well before the World Wars. In his opinion
It may be that the earliest phenomenon that can be functionally related to fascism is American: the Ku Klux Klan. Just after the Civil War, some former confederate officers, fearing the vote given to African Americans in 1867 by the Radical Reconstructionists, set up a militia to restore an overturned social order. The Klan constituted an alternate civic authority, parallel to the legal state, which, in the eyes of the Klan’s founders, no longer defended their community’s legitimate interests. By adopting a uniform (white robe and hood), as well as by their techniques of intimidation and their conviction that violence was justified in the cause of their group’s destiny, the first version of the Klan in the defeated American South was arguably a remarkable preview of the way fascist movements were to function in interwar Europe.
The Klan absolutely had the sense of crisis. They unarguably resorted to means beyond the conventional scope of politics to remedy it. So did the Confederates before them, but the Confederates adopted the forms of a normal state in a way that the Klan could not.
the primacy of the group, toward which one has duties superior to every right, whether individual or universal, and the subordination of the individual to it
The Klan’s group, aside the organization and allied movements themselves, came in the form of the white race and the white South. That tradition, like many others, carried over into the South that the Klan made and has important precursors in antebellum thought on Southern distinctiveness. Behavior which one would ordinarily not tolerate, even toward other white men, became just in order to save the race and the South from the horrors of abolition and racial equality. The white South’s obsession with genocidal race wars coming on the heels of abolition may imply the same idea, but exertions on that front looked toward forestalling a future crisis rather than attacking one then present.
the belief that one’s group is a victim, a sentiment that justifies any action, without legal or moral limits, against its enemies, both internal and external
That really speaks for itself, but I can’t let it go without noting that antebellum white Southern writing on sectional strife constantly depicted their section as aggrieved and prostrate. A decade of unprecedented victories that came near to overthrowing the very idea of a free state didn’t change that.
dread of the group’s decline under the corrosive effects of individualistic liberalism, class conflict, and alien influences
Paxton consistently uses liberalism in the European sense, entailing not American leftism but rather a strong hostility toward regulation of capitalism.
Here too I see Antebellum as well as Reconstruction antecedents. The enslaving class prided themselves, at least for public consumption and in the hoarier parts of the South, on playing the part of the disinterested country gentleman. Some played it straight into bankruptcy. Few Southern writers could compare the sections in the late Antebellum without reference to the North’s cold, brutal capitalism. The South had genteel paternalism, delivered good and hard with every strike of the lash. With the war lost, they had the realities of “alien” influences in the persons of the freedpeople and the small number of white northerners who came South to join the larger number of white Southerners in the effort to make a new section. From the point of view of the former enslavers, they had fallen very far indeed.
the need for closer integration of a purer community, by consent of possible, or by exclusionary violence if necessary
While I have seen reference to racial purity in Antebellum writing, it more often comes in abolitionist attacks on the sexual exploitation that slavery facilitated than from white Southerners themselves. The Klan surely sought a purer community, by their own lights. The forced inclusion of freedpeople into the Southern community, however marginally and unequally, sent them rushing for the bedsheets and rope.
the beauty of violence and the efficacy of will, when they are devoted to the group’s success
The Klan didn’t just lynch people, though they did plenty of that. They made a production out of it. White southerners, and not a few northerners, would keep right on doing that with great regularity for decades. It took only a few people to murder someone, but plenty would turn out to watch, get their pictures taken, and go home with grisly souvenirs. Any group can romanticize struggle, but fascists really go above and beyond.
the right of the chosen people to dominate others without restraint from any kind of human or divine law, right being decided by the sole criterion of the group’s prowess within a Darwinian struggle
Few Klansmen, at least during Reconstruction, would have signed up for that in so many words. Most probably understood themselves as acting in strict compliance with divine law and, until quite recently, the laws of men and nations. Theories of racial supremacy go back well before Darwin, though. If the Klan didn’t understand themselves as engaged in a Darwinian struggle, then they surely would have recognized a racial struggle for dominance in more Christian and traditionalist terms.
I have not studied the Klan as I have the late Antebellum. My knowledge comes up short in particular with some of Paxton’s points which I have hitherto omitted:
the need for authority by natural leaders (always male), culminating in a national chief who alone is capable of incarnating the group’s destiny
the superiority of the leader’s instincts over abstract and universal reason
I don’t know enough about the early Klan’s internal operation to comment on these either way, though I’d be happy to hear from someone who does. The first point in particular sounds much more twentieth century than nineteenth to me.
What does all of this have to do with us? I don’t know any better now than I did some paragraphs ago where the United States shall go, but we should not pretend fascism could never happen here. It might, in fact, lurk just around the corner. It certainly has before, and come around that corner to achieve almost every item on its agenda. American fascism can happen, has happened before, and has succeeded before. We should not forget this, unless we want to see it again.
An American fascism would not come bedecked in swastikas and goosestepping about. It would draw on traditional elements of the political culture, just as European fascist movements drew on their own backgrounds. The Klan, whatever its incarnation, burned crosses. It declared itself once for traditional Southern values and then for pure Americanism. A fascist movement need not create; it shop for symbolism off the rack as well as any. I would expect American fascism to direct its hatred toward Americans it doesn’t deem white, most conspicuously black Americans but also immigrants, documented or not. It wouldn’t give a stiff-armed salute, but would turn the Pledge of Allegiance from an already troubling habit into a compulsory litmus test of one’s humanity. It would come wrapped in the stars and stripes, probably with some Confederate flags handy too. Where Germans talked about the volk, Americans would talk about patriotism.
Have we crossed the line yet? Do we today have a viable fascist movement? The seeds of one exist everywhere. Paxton’s mobilizing passions could, and probably do, beat in all our hearts from time to time. They come from far too deep in human psychology and the experience of living in modern states for us to ever entirely banish them. Any line we could draw would cut across important precursors. Any future twist of circumstance might leave us with more prosaic, if still horrid, authoritarianism. The United States has had tremendous good luck in that a fascist movement has never quite broken through to control of the national government. But the second Klan did run Indiana and Oregon for a time; it might have done better. Marking the point of no return with confidence can only work in retrospect.
Still, I wrote this because I do have an opinion. I worry the most about the legitimization of political violence. The United States has always had some of that, often much more than we’d like to remember. It has mostly afflicted people we consider outsiders and thus dismiss it as nothing worthy of concern, unless we instead took the time to express our approval. But one doesn’t expect a presidential candidate’s supporters to do much more than maybe behave boorishly toward opponents. We had had more than that this year. We seem poised for more. Where by convention we would expect the candidate to disavow such people, we see the opposite.
Donald Trump has endorsed his supporters roughing up the opposition, promising that he has their backs and if he doesn’t get the nomination he wants then riots may ensue. Violence at Trump events appears more often than one would expect for bad luck or coincidence, even if the candidate didn’t encourage it. His people have paid attention. Trump might not really come through for them, but authoritarians always grant their leaders slack on that front.
We might not have gotten there yet. This might all fall apart in the unlikely, but not impossible, event that Trump loses the Republican Party nomination. It might do the same if, as seems likely, he loses in November. I hope it does. But Trump didn’t invent any of this. His supporters will not evaporate if he loses, but will wait for the next person willing to take them all the way. He has, as I said a few weeks ago, reminded any who forgot that white nationalism can take you far in the United States. The last time the Republican party establishment turned on their base’s chosen man for the presidency, Barry Goldwater, his supporters took over the party over the course of the next decade. Given their remarkable successes, we could end up in a very dark place either way.
Demographics may save us in a country producing fewer and fewer whites, but South Carolina mastered King Numbers for decades. Our luck may hold out this time, but it can’t forever. The last big terrorist attack prompted a tremendous lurch toward authoritarianism, from which we haven’t emerged. We have, literally, as a matter of national policy, tortured people. Another attack could easily put us still further over the edge. So could a sudden economic dislocation. The next guy might have better political skills and sell with a bigger smile, something that usually wins over Americans. For at least a decade and a half, the far more conventional politics of the nation have involved much more constitutional pushing and shoving than usual. Now we have a movement boning up on its street violence.
Reading sources hostile to the free state movement, and antislavery in general, one often comes across mention of their treasonable nature. With regard to the wildcat state government that came to operate in Kansas in late 1855 and early 1856, the connection doesn’t require much explanation. They really did aim to set up an illegal government within the territory of the United States, in opposition to the legally-constituted government placed in charge of that same territory. When the guilty parties work only to obstruct the fugitive slave law, to the point of violence, the accusations seem more strained. Strained, however, does not mean insincere, hysterical, or inaccurate. I have previously tried to understand accusations of treason in the context of those making them and the situation at hand. I lacked a grounding in nineteenth century jurisprudence necessary to say more. Thanks to Al Mackey’sresearch (PDF), I can do better now.
On October 15, 1851, your author’s negative one hundred twenty-ninth birthday, Justice Samuel Curtis of the United States Circuit Court in Boston issued instructions to a grand jury. It doesn’t seem that Curtis had a specific case in mind when he gave these instructions, but rather made them in anticipation of cases likely to come before the jurors during their term. We know that Boston didn’t have another fugitive rescue until Anthony Burns, but he didn’t.
Curtis opens by explaining why we must take treason so seriously, noting that it alone receives a precise definition in the Constitution.
It is there made to consist in levying war against the United States, or adhering to their enemies, giving them aid and comfort. This language is borrowed from an ancient English statute, enacted in the year 1352 (25 Edw. III.), mainly for the purpose of restraining the power of the crown to oppress the subject by arbitrary constructions of the law of treason.
That all sounds very high school civics. The Founders, understanding that accusations of treason could lead to serious oppression, precisely defined the crime. Themselves a band of traitors against the crown of Great Britain, they had experience on both sides of the law. To argue that either small bands rescuing fugitive slaves or a protest movement oriented towards achieving legitimacy with the United States government levied war against it may seem quite the stretch to us.
Curtis didn’t think so. According to “settled interpretation”
the words “levying war,” include not only the act of making war for the purpose of entirely overturning the government, but also any combination forcibly to oppose the execution of any public law of the United States, if accompanied or followed by an act of forcible opposition to such law in pursuance of such combination.
Curtis couldn’t read the free state movement into this back in 1851, but surely would have recognized it later just as he recognized treason in fugitive slave rescues. He provided the jury a helpful checklist for diagnosing traitors:
(1) A combination, or conspiracy, by which different individuals are united in one common purpose.
Whether the Boston vigilance committee or the free state party, we have that. The Blue Lodges gave the border ruffians much the same. But anybody could unite in common purpose. If you go out with friends to see a movie, you’ve done as much.
(2) This purpose being to prevent the execution of some public law of the United States by force.
Our night at the movies slips the net here. The free state movement, for all its rhetoric of resistance, also wrapped itself in the flag and declared specifically for a public law of the United States: the Kansas-Nebraska Act. Though one sees occasional reference to the Kansas-Nebraska Act’s sanctity from proslavery men, they generally defended their activities in terms of counteracting efforts by Emigrant Aid Societies. They concerned themselves, on paper, with tit for tat rather than the sanctity of the law, except for the Kansas slave code.
The free state party, whatever occasional disavowals its leaders made, did have active military companies enlisted for its cause. Prior to fooling Wilson Shannon into authorizing them, those forces occupied a deeply ambiguous role. However, they did not meaningfully satisfy Curtis’ third criterion:
(3) The actual use of force, by such combination, to prevent the execution of that law.
Nobody attacked the United States Army, revenue officers, or federal marshals. Andrew Reeder faced armed threats in regard to the execution of his duties, but the proslavery men declined to consummate them. Benjamin Franklin Stringfellow attacked the governor and the matter ended with pistols drawn, but he had a personal grievance against Reeder for calling him a border ruffian.
By a very strict reading Curtis, it seems no one in Kansas had committed treason. The judge, however, intended a more expansive reading and offered it up to his jurors.
An American fascism would not come bedecked in swastikas and goosestepping about. It would draw on traditional elements of the political culture, just as European fascist movements drew on their own backgrounds. The Klan, whatever its incarnation, burned crosses. It declared itself once for traditional Southern values and then for pure Americanism. A fascist movement need not create; it shop for symbolism off the rack as well as any. I would expect American fascism to direct its hatred toward Americans it doesn’t deem white, most conspicuously black Americans but also immigrants, documented or not. It wouldn’t give a stiff-armed salute, but would turn the Pledge of Allegiance from an already troubling habit into a compulsory litmus test of one’s humanity. It would come wrapped in the stars and stripes, probably with some Confederate flags handy too. Where Germans talked about the volk, Americans would talk about patriotism.
Freedmen's Patrol 
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