The Apology Absurd: The Crime Against Kansas, Part 9

Charles Sumner (Republican-MA)

Prologue, Parts 1, 2, 3, 4, 5, 6, 7, 8Full text

Charles Sumner did not have a high opinion of the defenses that Stephen Douglas and others had for all the injustice and mayhem that had taken place in Kansas. The seizure of the territorial government by force, threats, and massive voter fraud by Missourians entirely disqualified it as a legitimate organization to his mind. But Douglas, Andrew Butler, and other senators defended them all the same. It thus fell to Sumner to pick their defenses apart. First he dismissed the Apology Tyrannical, which held that once governor Andrew Reeder recognized the election results they had to stand. Then he cast aside the Apology Imbecile, where the proslavery senators averred that -whatever happened in Kansas- the Congress and Presidency had no power to intervene.

That brought Sumner to what he called the Apology Absurd

which is indeed, in the nature of a pretext. It is alleged that a small printed pamphlet, containing the “Constitution and Ritual of the Grand Encampment and Regiments of the Kansas Legion,” was taken from the person of one George F. Warren, who attempted to avoid detection by chewing it.

Samuel Newitt Wood

Gentle Readers, I wish I could tell you more of this story. A spot check revealed other references, but only to the bare fact of Warren chowing down. You may remember the Constitution and Ritual from past posts. The Kansas Legion, aka the Kansas Regulators, organized as a paramilitary force to defend antislavery Kansans and occasionally burn down proslavery homesteads. Jacob Branson and Samuel Wood served in it. The Free State leadership denied knowledge or approval, officially. Maybe that passed scrutiny in Washington and among people sympathetic to the cause, but their connection appears more like an open secret in Kansas.

Sumner’s foes argued that the Legion justified harsh measures on the part of proslavery men. They had something like a terrorist organization about and it required dealing with. That position makes perfect sense for a proslavery Missourian or Kansas who equates opposing slavery with incitement to race war. They had to do what they did to save the community from ruin, essentially in self-defense.

To answer that, Sumner first dismissed the Legion as a “poor mummery of a secret society, which existed only on paper.” If it did exist, though, it proposed only to enlist antislavery men to defend the Constitution of the United States. How could any patriotic American object to such a goal?

Secret societies, with their extravagant oaths, are justly offensive; but who can find, in this mistaken machinery, any excuse for the denial of all rights to the people of Kansas? This whole “cock and bull story” never really happened to begin with, but if it did then so what? Sumner dismissed the Apology Absurd with “the derision which triviality and absurdity justly receive.”

 

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Two Roads to Lawrence

Wilson Shannon

Wilson Shannon

When Wilson Shannon, Governor of Kansas, told the people of Lawrence that they could disarm themselves in the face of an armed foe bent on their destruction if they wanted him to lift a finger to save them, he claimed the only danger they might face came from a legally-constituted posse. Under ordinary circumstances, and if the governor had burdened himself with facts, one might not find much to quarrel with in that. For a governor to interfere with the work of the courts must raise suspicions of executive usurpation. But Lawrence faced rather more than a posse, and when confronted with a posse of United States dragoons, the town had offered no direct resistance.

Lawrence came to all of this by two roads simultaneously. Samuel Jones, the proslavery sheriff, came into the town to apprehend Samuel Wood. Wood, a free state militia officer, had rescued fellow officer Jacob Branson from Jones’ custody back in December. This even precipitated the first campaign against Lawrence. Wood declined to go with Jones and a scuffle ensued, which deprived Jones of a pistol. Wood and the men who helped him get free from Jones promptly made themselves scarce. Jones applied to the 1st Cavalry for help, securing about a dozen soldiers who went back into Lawrence with him, searched the town and surrounds, and found none of his original quarry. He arrested about ten others and camped in town. Someone shot him in the back. Jones survived, but the proslavery press reported his death.

Samuel Newitt Wood

Samuel Newitt Wood

Jones’ travail by itself may have caused the invasion, just as his previous had, but the federal government became more directly involved when Samuel Lecompte’s grand jury summoned the entire free state leadership for questioning, with execution to follow. Serving Lecompte’s warrants did not fall to Jones or his office, as he served only the territorial government. Lecompte had his appointment direct from Franklin Pierce. He presided over the First District Court of the United States for Kansas Territory and so could call on the US Marshals to handle his process. Lecompte did in the person of J.B. Donelson (also rendered as Donaldson in some sources), an Illinoisian whom William Phillips called

a comparatively illiterate and informed man,. and, judging from his manner of acting in his official capacity, totally devoid of the legal knowledge necessary to dignify his office. […] He is a man past middle age, of coarse, unintellectual face, and, from his looks, ought never to have held a station above that of town constable; he would not have been too well qualified for that.

Ugly and unqualified or not, Donelson passed the matter of Lecompte’s warrants over to a Georgian named Fain. Fain tried to serve one against Andrew Reeder, then working with the Howard Committee. Reeder dismissed Fain’s summons on technical grounds, so he returned the next day with a warrant for contempt of court. Reeder declined to go with him because he had privilege from arrest, that the summons would impede his work with the committee -Lecompte probably agreed-, and that he would find his murder while in the custody of proslavery men inconvenient just then. Meanwhile, the rest of those with warrants against them began to depart Lawrence for safer pastures. Reeder soon followed.

William Addison Phillips

William Addison Phillips

According to Phillips, Fain did not let matters sit there. Instead of going back to Lecompton to report his failure,

he went down to Franklin, where at that time a band of Southerners, under Capt. Moon, were stationed. There the alarm was given, and soon scouts were sent to Missouri to gather in the Southerners still stationed there.

Last time around, Jones had gone from losing Branson straight to Franklin to write Missouri for help. Now Fain had done the same. Where Jones could claim the mantle of the territorial government and militia for his first campaign, the second could proceed with the imprimatur of the federal courts.

“There is more abolition wolf-bait.” The Shooting of J.N. Mace, Part One

Samuel Jones

Samuel Jones

We left off with a retrospective on how the proslavery border ruffians had pushed indifferent and even sympathetic Kansans into the free state camp by their heavy-handed, sometimes deadly, actions to force slavery upon the territory. George Brown, or rather his associate editor J.H. Greene as Brown had left Kansas on business, published it in the Herald of Freedom as part of a general appeal for help from the East. He and his fellow free state men expected a new invasion in short order and feared that this time, Wilson Shannon would send the 1st Cavalry out of Fort Leavenworth after them as well. They came to those dire straits courtesy of proslavery sheriff Samuel Jones, who came to Lawrence to arrest Samuel Wood. Wood had rescued his fellow free state militia leader, Jacob Branson, from Jones’ custody back in December. As soon as Wood got back to Kansas, Jones went to take him in. Wood refused to oblige, leading to Jones coming back with some of the cavalry as bodyguards. Wood and his accomplices fled Lawrence in advance of that, but someone shot Jones in the back while he camped in town.

Almost simultaneously, proslavery judge Samuel Lecompte got a grand jury to summon the entire free state leadership on suspicion of treason, usurpation of office, and other charges. The jury also declared Brown’s paper a public menace which deserved suppression. Free state governor Charles Robinson left on the 9th. The free state’s senator-elect/delegate to Congress, Andrew Reeder took off shortly thereafter on learning that the previous plan for him to serve as a test case would likely end in his death.

Samuel Lecompte

Samuel Lecompte

Before he left, Brown made sure everyone got the point. After his item recapping Kansas shift into the antislavery camp, he detailed the first attempted arrest of Reeder. Then came an item on Pardee Butler’s late travails. Butler had nothing to do with the free state government except preferring it as a private individual. Brown identifies J.N. Mace as a free state man like Butler, but calls him a captain. That implies militia leadership, which might have made him a larger target. Mace came into Lawrence on April 29, 1856, to testify before the Howard Committee. That night he sat at home until his dog raised a ruckus. Mace went to see what had happened, and

walked but a short distance from the door, when several shots were fired at him, one taking effect in his leg, near the top of his boot. The shot paralyzed his leg, and so stunned him that he fell to the ground. Two persons, who were concealed in a gully close at hand, hereupon made good their escape, one of them remarking, “there is more abolition wolf-bait.”

Unlike Brown’s story of highway robbery, this has a sound ring of truth to it. Mace did testify before the Committee and by naming him Brown invites people to check his facts. Mace suffered for “several hours” before he could get back indoors. Brown called the wound “severe” but not life-threatening, so in theory anybody nearby could go see for themselves.

Charles Robinson on the Jones Shooting

Charles Lawrence Robinson

Charles Lawrence Robinson

Lawrence Responds: parts 1, 2, 3, 4

We left Lawrence resolved to look seriously into who shot Sheriff Samuel Jones in the back on the night of April 23, 1856. They might have even meant it, regardless of how many free state people in the town believed Jones deserved a good shooting. On behalf of the free state government, Charles Robinson offered a $500 reward for the arrest of the guilty party. After Andrew Reeder’s speech and the resolutions, he answered the loud call to speak to the public meeting. I don’t mean to go over his speech in fine detail, but it deserves a look.

The free state Governor began on a less than conciliatory note:

We are engaged in a sort of warfare, in this State of Kansas, but it is an honorable warfare on our part, and will will never, as individuals, as a community, or as a party let ourselves down from an honorable position; we will never change ourselves from honorable enemies, to cowardly assassins. No honorable man could justify any such course.

Robinson had spoken of war before, but to do so now strikes an especially radical note.

Hugh Cameron

Hugh Cameron

These words also have more than a hint of aspiration about them. Robinson hewed to the line that someone had put this whole situation up to discredit his movement, just as he affirmed that the Wakarusa War back in November and December had resulted from proslavery scheming. He didn’t make that connection gratuitously or entirely without basis in fact. The gloriously hirsute Hugh Cameron appears to have gotten his justice of the peace commission in exchange for warrants to arrest Jacob Branson’s rescuers. Whether the inciting events came from a plot or not, Jones himself might well have gotten Wilson Shannon to make it one. Jones came back to Lawrence at the start of the late troubles to arrest Samuel Wood, the leader of Branson’s rescuers. One needn’t be a free state partisan to connect those dots.

All the same, Governor Robinson determined to get to the bottom of things. He told the crowd that he had looked into things himself and found, so far as he could determine, a proslavery plot. But since “[w]e all understand this” Robinson felt no need to “go into particulars.” The Governor then recapped the Wakarusa War anyway. Politicians always love the sound of their own voices, but Robinson had a particular audience in mind: the Howard Committee.

A committee comes here from Washington to investigate this matter, and see how we have been treated; to see who are the oppressed, who are the wronged; to see who are in the right. The very moment they plant their feet upon the soil of Kansas, that moment these outrages begin to be fomented. Everything has been quiet up to that moment.

The Howard Committee

The Howard Committee

This, as I have mentioned before, doesn’t quite stand scrutiny. Jones came to Lawrence at essentially the first opportunity on news of Wood’s return from Ohio. Robinson must have known better. A man of his stature in Lawrence would have had the news of an important free state arrival, from the Herald of Freedom if nothing else. The free state Governor follows up an at least misleading statement with a likely outright lie:

The people treated him civilly, so far as I know. I never happened to meet him, but I have learned of no commotion. There has been some little excitement, perhaps, but the community generally have been willing to let him goon and make his arrests.

Robinson can’t have expected that to fool anybody with the denial and the doubletalk about excitement. Something happened, but trust him it didn’t really count. Ok? It strains credulity to imagine that he didn’t know Jones’ foes resisted him to the point of violence. He passes all of that off as “[s]ome individuals” refusing arrest. And anyway, whatever happened no one could pin it on Charles Robinson. He took the opportunity to note that he

happened to be out of town last evening, and I suppose I shall not be charge with the offence committed then.

 

Resolutions: Lawrence Responds to the Jones Shooting, Part Three

Andrew Horatio Reeder

Andrew Horatio Reeder

Parts 1, 2

Andrew Reeder continued his speech to the Lawrence meeting by abandoning the pretense that no one knew just who had shot Sheriff Jones the day before. He pointed to all the sympathy and respect they had gained in the free states by eschewing violence. Would they throw all of that away? In a political environment where antislavery Americans had seen far more vilification than their proslavery opposites, in North and South alike, he had a point. Things had gotten progressively better for them in the North since around 1848, and especially since 1854, but that shift could reverse at any time. A collision with the United States government would surely remind Americans of the recent era when they saw opposition to slavery as tending toward disunion. Shooting Jones might not have done that, but had the bullet found a United States dragoon it might have done the trick. So might an open insurrection.

Reeder made it clear that he said not a word of this out of any love of Jones or his politics, but he continued on the theme for another column and change in the Herald of Freedom. Along the way, he reminded the people of Lawrence of most of what had happened in Kansas in the past two years. According to the paper, he frequently had to stop for applause. But then the meeting had business to get to. You didn’t hold a mass meeting in the nineteenth century without some resolutions to put the assembly on the record. G.P. Lowery had a set prepared:

the attempt made in our town last evening upon the life of S.J. Jones, Esq., whilst claiming to act as the Sheriff of the county, was the isolated act of some malicious and evil-disposed individual, unexpected and unlooked for by our community, and unsustained by any portion of them.

Isolated and unexpected, maybe. Lowery probably could have found plenty of people in the room that morning who believed Jones had it coming and didn’t feel any guilt about his shooting. They might fear the dangerous consequences to the town, but can’t have shed many tears for Jones. Thus the second resolution:

notwithstanding the unpleasant relation which existed between Mr. Jones and our citizens, if the attack could have been foreseen or considered at all probable, we would have neglected no means to prevent or defeat it; we deeply sympathize with the wounded man, and will afford him all the aid and comfort of our power.

They probably would have. Even when proslavery armies nearly surrounded Lawrence, the leadership worked to avoid a pitched battle. As that work involved restraining hotheads within their own ranks, who didn’t much care for how the proslavery men took potshots at them, we know that sentiment didn’t touch every heart.

we deeply regret that the perpetrator of this deed is unknown; and if known to us, we would unhesitatingly expose and denounce him as the criminal

and

it is due to the reputation of our town, and loudly demanded by the deep and universal indignation which pervades our community, that the guilty author should, if possible, be sought out and surrendered to justice

These resolutions promise a great deal and nothing at all. They would expose and denounce the shooter, if they knew him, and hand him over for justice, if they could find him. Maybe they would, but Lawrence had previously ensured fugitives from the law in their community got enough advance warning to escape capture. They did it for Jacob Branson and Samuel Wood in December. They did the same for the men who helped Wood escape only days before. Indignation, deep and universal, only went so far.

 

 

“Or kill every D—–d Son of a B—h there” The Arrest of Samuel Wood, Part Two

Samuel Jones

Samuel Jones

 

We left Lawrence on April 19, 1856, with Samuel Jones placing Samuel Wood under arrest for seizing Jacob Branson from him way back in December. Wood had left Kansas for a while thereafter, but on his return Jones soon got word and came to do his duty and get his revenge. Wood appeared inclined to comply, asking only that Jones let him see his family before they departed. That didn’t sound too bad, but Jones wanted Wood to accept his authority and insisted on a promise that Wood give himself up after the visit. Wood would have none of that, so Jones refused permission. Wood twisted free and bounded for the house.

John Speer saw, and participated in, what happened next:

Jones jumped for him [Wood] and caught him by the collar just as he reached me at the door; when, impromptu, and apparently without reflection, I caught Jones by the throat and wood by the coat collar, and saying, “Get away, Wood.”

Wood saw the wisdom of that, but relieved Jones of a revolver before departing. Jones had deputies with him. Merrill’s True History of the Kansas Wars lists only one, which I reported before, but Speer insists on three. They might both have it right, as Jones might have gone to town with one person and had others join him there. James B. Abbott “laid one of them down on the ground very hard.” Charles F. Garrett “swung another off the porch by the coat tail.” I don’t know how that maneuver works, but it sounds uncomfortable. Samuel F. Tappan “throttled” the last.

Jones, just as delighted as one would expect given his circumstances. According to Edward Fitch (PDF),

Jones raved and swore some and said he would have S.N. Wood or kill every D—-d Son of a b—h there

The crowd, enchanted by Jones’ repartee, tried to offer their own graceful converse: “Put him in the river!” Speer tried to talk the Lawrence crowd down, advising them that proslavery men should have the outrage market cornered. One of the deputies then cried Uncle, at which point Jones and friends departed.

If you remember the events of the Wakarusa War, you know that Jones doesn’t take this kind of thing laying down. When Wood relieved him of Jacob Branson, Jones called in an army. He wrote to Missouri and then to Governor Shannon, setting in motion the siege of Lawrence. Coming near to a bloodbath apparently didn’t leave Jones much more satisfied than it had Robert S. Kelley, but the sheriff of Douglas County had some creativity in him. The last time, he dallied long enough for Lawrence to amass defenders. For a second try, he aimed to serve his warrants before anyone knew they needed an army again.

“Martyrdom on the scaffold or the stake”

Charles Lawrence Robinson

Charles Lawrence Robinson

Charles Robinson concluded his first message (PDF) to Kansas’ new legislature with some further remarks on their situation. Everyone had seen Sheriff Jones taking names down as men came forward and swore their oaths of office. They might have exchanged some jokes or tossed a few insults his way, but everybody knew Jones meant business. Robinson didn’t name him, but none could have had to guess for long just who he meant when the new governor said

It is understood that the Deputy Marshal has private instructions to arrest the members of the Legislature and the State officers for treason as soon as this address is received by you. In such an event of course, no resistance will be offered to the officer.

The last time someone, Samuel Newitt Wood, offered resistance to Jones it ended with an army outside Lawrence. For all the bellicose language common in such times, the free state movement had barely gotten clear of that without a battle they might well have lost or, failing that, won at the expense of bringing the United States Army down on their heads.

The standards of manly performance would not allow Robinson to admit to that in so many words, but nineteenth century discourse permitted him other avenues:

Men who are ready to defend their own and their country’s honor with their lives, can never object to a legal investigation into their action, nor to suffer any punishment their conduct may merit. We should be unworthy the constituency we represent did we shrink from martyrdom on the scaffold or at the stake should duty require it. Should the blood of Collins and Dow, of Barber and Brown, be insufficient to quench the thirst of the President and his accomplices in the hollow mockery of “Squatter Sovereignty” they are practising upon the people of Kansas, then more victims must be furnished. Let what will come not a finger should be raised against the Federal authority until there shall be no hope of relief but in revolution.

If the vampiric president descended upon them, Robinson told the free state men to stand ready. Should Pierce throw a war, they ought to come. Should he martyr them, they died for righteousness’ sake and could claim whatever patriotic and heavenly blessings such an office would convey. Kansas had hard times yet ahead, Robinson averred, but together and putting their faith in the Almighty, “His wisdom who makes ‘the wrath of men praise him'” they would make their Kansas into the Kansas, a state of the Union free twice over. Their Kansas would have no slaves and no black Americans alike, preserving it for them and their posterity. To that cause, the Governor need not add, they would commit their lives, their liberty, and their sacred honor.

Nathaniel Banks

Nathaniel Banks

It must have made for a rousing read, thick with the patriotic and religious sentiments most potent to Robinson’s audience. But the bold words had to come with more than a hint of desperation. Jones would probably try nothing then and there, but what would happen down the road? The free state men had stuck their necks out, then stuck them out still further, in the hope that Congress would come to their rescue. That same Congress finally agreed on who ought to serve as Speaker of the House after a solid two months of debate, finally settling on a Know-Nothing antislavery man called Nathaniel Banks. They elected him on a plurality, not a majority, and it took one hundred and thirty-three ballots. The question of the free state government’s legitimacy could not hope to be any less explosive than that.

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

Samuel Newitt Wood

Samuel Newitt Wood

Samuel Curtis laid out a thoroughgoing definition 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

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.

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.

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

Samuel Jones

Samuel Jones

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 fugitive slaves 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

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, Virginia aristocrat, military officer, and future confederate general

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.