Charge to Grand Jury–Neutrality Laws and Treason

This is an excerpt from a charge to a grand jury in Boston on October 15, 1851, delivered by Justice Samuel Curtis, the Circuit Justice for the Circuit Court in the District of Massachusetts. The citation for this charge is 30 Fed. Cas. 1024, Case No. 18,269.

After a discussion of the Neutrality Laws and the need for them, Justice Curtis turns his attention to the law regarding the crime of Treason.

“Under the laws of the United States, the highest of all crimes is treason. It must be so in every civilized state: not only because the first duty of any state is self-preservation, but because this crime naturally leads to and involves many other, destructive of the safety of individuals and of the peace and welfare of society. This crime is defined by the constitution itself, and its magnitude, as well as the importance of a fit and rigid definition of it, may be inferred from the fact that it is the only offence defined by that instrument. 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.” [30 Fed. Cas. 1024, 1025] In interpreting the meaning of the law, Justice Curtis said, “At the time of the introduction of this language into our constitution, it had acquired a settled meaning, and that meaning has been adopted by the courts of the United States when they have had occasion, as unfortunately they have had occasion, to interpret these words. This settled interpretation is, that 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 combinations. The following elements, therefore, constitute this offence: (1) A combination, or conspiracy, by which different individuals are united in one common purpose. (2) This purpose being to prevent the execution of some public law of the United States by force. (3) The actual use of force, by such combinations, to prevent the execution of that law.” [30 Fed. Cas. 1024, 1025]

Justice Curtis tells us that the law requires some additional clarification. “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 inpursuance 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 if their combination had reference solely to that case. But if process of arrest issue under a law of the United States, and individuals assemble, forcibly to prevent an arrest under such process, pursuant to a design 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. The law does not distinguish between a purpose to prevent the execution of one law, 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 treasons to escape punishment, simply by excepting out of the treasonable design, some one law.” [30 Fed. Cas. 1024, 1025]

Justice Curtis then tells the grand jury, “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. The presence of numbers who manifest an intent to use force, if found requisite to obtain their demands, 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. … 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. 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 of this offence, thought hey are not present at the immediate scene of violence.” [30 Fed. Cas. 1024, 1026]

The application of this explanation of the law to the Civil War should be obvious to all. The confederates were armed forces of men who sought to prevent the execution of US laws within the boundaries of certain states of the United States.

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6 comments

  1. This is extremely relevant to my research on territorial Kansas. Thanks. 🙂

    Do you happen to know the particulars of the case before the grand jury? It sounds a little like a fugitive slave rescue, but seems quite late in the year to have been concerning Shadrach Minkins’ liberators and I don’t know what the relevance of the neutrality laws to that would be to that. The latter say filibuster to me, but the ones I’m familiar with usually worked out of New York or New Orleans rather than Boston.

    1. Curtis was anti-abolitionist, and this part of the charge is no doubt meant to instruct the jury that resistance to the Fugitive Slave Law of 1850 was treason.
      https://books.google.com/books?id=-MpsU0JSR14C&pg=PA221&lpg=PA221&dq=30+Fed.+Cas.+1024+Case+No.+18,269&source=bl&ots=Yx1yjIaG_O&sig=WGzm1KgEa9Js1t4qoo1z4C0xgWM&hl=en&sa=X&ved=0ahUKEwiSgsm5rLrLAhWGKB4KHbQjAI0Q6AEINDAF#v=onepage&q=30%20Fed.%20Cas.%201024%20Case%20No.%2018%2C269&f=false

      The first part of the charge to the grand jury, though, directly addresses the neutrality laws, which no doubt is aimed at filibustering.

      It seems to me Justice Curtis either believed there would be occasion to bring charges against someone for violating neutrality laws and the Fugitive Slave Law or that he was aware of someone having been arrested and about to be arraigned.

  2. That all stands to reason. I’m probably being too literal-minded to take the instructions as written with specific pending cases in mind rather than just as general admonitions informed by the political climate in the wake of the Lopez filibustering against Cuba and the fugitive rescues.

    1. When I first saw a charge to a grand jury I thought of specific cases, but on thinking it through I realized the grand jury indicts, so they get involved before there’s an actual case. So the charge to the grand jury are most likely instructions as to what the law is prior to an indictment. Either someone has just been arrested or the judge/justice believes someone will be arrested and subject to being charged with a crime that fits those instructions.

      1. I think you’re right.

  3. […] 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 […]

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