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.

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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.

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

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’s research (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.