Kansas, Boston, and Treason in the Nineteenth Century, Part Three

Samuel Newitt Wood

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.