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

Samuel Newitt Wood

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

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.

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The Army of Northern Virginia and Slavery: By the Numbers

The Confederacy’s latter-day partisans have no shortage of arguments, making up for the dearth of quality with a surfeit of quantity. One must use the tools one has. I’ve taken a swipe or two before at the idea that ordinary soldiers had no stake in slavery and therefore the Civil War and the Confederacy had nothing to do with it, as well as its slightly more plausible variant that we should not operate under a presumption of proslavery intent in understanding military service with the Confederacy. I think the case against the proposition that the average men and occasional woman in a gray or “gray” uniform doesn’t require much further development and planned to leave it be.

Robert E. Lee, Virginia aristocrat, military officer, and future confederate general

Robert E. Lee

Plans changed this week when I remembered Joseph Glatthaar’s statistical study, Soldiering in the Army of Northern Virginia. It concerns the Confederacy’s principal field army. For most of its existence, Robert E. Lee had command of the force. The ANV fought in all of the battles most laypeople have heard of, against the familiar rotating cast of United States generals that ended with Ulysses S. Grant. I took an interest in Glathaar’s study when it first came out, but flinched at the price tag and its distance from my usual interests. I don’t mind straight military history, but have a much stronger interest in the politics that produce it. Likewise my interests have skewed rather more than I anticipated when I started this blog toward the Antebellum. When it fell off my radar, I hadn’t read an ebook and didn’t own a Kindle. Now I do and the digital version comes with a very reasonable price.

Before I get into the findings themselves, Glatthaar’s method deserves some explanation. Using existing records, he developed a random sample of 600 soldiers. The sample took in infantry, cavalry, and artillery in proportion to their numbers in the army and represents officers and enlisted men similarly. It does not attempt to achieve the same balance with regard to the home states of the soldiers, though it does include men from all eleven Confederate states plus Kentucky and Maryland. The most in the sample hailed from Virginia (239), followed by North Carolina (96) and Georgia (86). Arkansas, Florida, Kentucky, and Texas tied for last at four each.

According to Glatthaar,

Just under half (46.7%) of all soldiers in Lee’s army were born in Virginia or North Carolina. With South Carolina and Georgia added, 3 of every 4 (75.1%) troops came from those Southern coastal states. One in every 13 (7.8%) was born in the North (a state that remained in the Union) or in a foreign country. Those numbers included young Private Bishop, the son of a fisherman, who originally hailed from New York and moved with his family to South Carolina.

Glatthaar, Joseph T. (2011-06-15). Soldiering in the Army of Northern Virginia: A Statistical Portrait of the Troops Who Served under Robert E. Lee (Civil War America) (p. 4). The University of North Carolina Press. Kindle Edition.

I cannot claim any special knowledge of statistics, but this sounds like about what one would expect for a fair, random sample from which we can confidently generalize about the ANV. Glatthaar also notes that 55.0% of the men resided in the Upper South, so one can’t claim he cherry picked a sample from the Cotton Kingdom’s black belts and then shockingly found them especially involved with slavery.

Right then, we’ve got a decent enough sample. What did Glatthaar find out about the men of the Confederacy’s preeminent army?

Soldiers were more likely to come from heavier slaveholding counties than the recruiting states as a whole. […] Their home counties on average had 16.6% more slaves to whites than the average of all the counties in those states.

Glatthaar, Joseph T. (2011-06-15). Soldiering in the Army of Northern Virginia: A Statistical Portrait of the Troops Who Served under Robert E. Lee (Civil War America) (pp. 5-6). The University of North Carolina Press. Kindle Edition.

One would expect more enslaved counties to show up more prominently in the rolls of an army defending slavery in a nation created for that purpose. A persistent person might argue that residence in a highly-enslaved county doesn’t necessarily make you more likely to favor slavery. The argument doesn’t make much sense considering the centrality of slavery in the South as a whole, let alone in its more enslaved than average counties where human property would have a more prominent and pervasive role still.

We could stop here and content ourselves with a data point in favor of an already well-supported position, but Glatthaar had more data still. Here we get into the real meat of things. It turns out that not only did men from unusually enslaved counties, by the standards of their own states, appear more frequently in Lee’s army. Men from slaveholding households did as well:

According to the 1860 census, 1 in every 20 (4.9%) adults owned slaves and 1 in every 4 (24.9%) households had slaves. In Lee’s army, more than 1 in every 8 (13.0%) soldiers owned slaves, and for those who lived with family members, approximately 3 in every 8 (37.2%) had slaves. Four of every 9 (44.4%) troops resided in a slaveholding household, some 78.0% greater than the South as a whole.

Glatthaar, Joseph T. (2011-06-15). Soldiering in the Army of Northern Virginia: A Statistical Portrait of the Troops Who Served under Robert E. Lee (Civil War America) (p. 9). The University of North Carolina Press. Kindle Edition.

Near to half of all men in Lee’s army lived in a slaveholding household. They grew up intimately acquainted with and materially benefiting from the stolen labor of black Americans. Furthermore, that number far exceeds the typical proportion of slaveholding families in the South.

Glatthaar doesn’t provide breakdowns by state for context, but I have them from my past work with the 1860 census. If recast as a state, Lee’s army would have had a greater percentage of enslaver households than any state of the Border or Upper South by a large margin. North Carolina, the most slaveholding among those states, topped out with 27.71% of households owning at least one person. It would even beat the Lower South’s average (37.01%), coming in between South Carolina’s 45.53% and Georgia’s 37.38%. This would make the State of Lee the South’s fourth most enslaving.

The Deep South in the 1860 census. (Click to enlarge.)

The Deep South in the 1860 census. (Click to enlarge.)

I’ve seen the complaint that Glatthaar went through a tremendous geneology project, pinning the slaveholding of fifth cousins, twice removed and essentially a strangers on some poor solider out of pure malice. Those who want to believe such things can, but Glatthaar used the United States census. It lacks any such remote information. The census takers organized their data by household. The parlance of the time called everyone who lived under the same roof or on the same property a family, even inmates at insane asylums and boarding houses where everyone understood no blood relation need exist.

Nor did Glatthaar cherry pick the wealthiest soldiers about, counting on the fact that wealth meant slaves in the antebellum South to make his point. Slaveholders, including the wealthy ones, do appear somewhat more prominently, but in measures of personal and family wealth the plurality of soldiers still could claim no more than $400 (35.8%). Another 5.9% came in below $800. By period terms, this made them poor. The middle class, between there and $4,000 accounted for another 22.8% of the ANV. The wealthy made up the remaining 35.4%. This creates a substantial gap in the middle, but the very wealthy would include large slaveholders who one would expect to have a stronger enthusiasm for the cause:

Approximately 92% of all soldiers’ households with a minimum total wealth of $ 4,000 possessed slaves. More than 1 in every 15 soldiers or his family (6.9%) achieved planter status— owning 20 or more slaves— and 1 in 11 soldiers (9.3%) resided in planter households. By contrast, 1 in 32 (3.2%) households in the South qualified as a planter. This was not, therefore, a rich man’s war and a poor man’s fight. Slaveholders, who also happened to be rich, served in disproportionately high numbers in Lee’s army. It was a rich, moderate, and poor man’s fight.

Glatthaar, Joseph T. (2011-06-15). Soldiering in the Army of Northern Virginia: A Statistical Portrait of the Troops Who Served under Robert E. Lee (Civil War America) (pp. 9-10). The University of North Carolina Press. Kindle Edition.

I know none of this can persuade those who have convinced themselves that the ordinary soldier had no interest in slavery. If the documentary record and bare census figures can’t do the job, then one more study never would. But for the rest of us, the numbers clearly show not just an increased interest in slavery for Lee’s army, in every way one would think to look, but one radically higher than coincidence or mere statistical noise could ever account for. They also, I must add, exceeded my own already generous expectations. I imagined thirty to forty percent more slaveholding households than the Southern norm, not nigh eighty.