December 2, 2022

On the clear, windy morning of December 2, 1859, just before 11:00, the doors of the jail in Charles Town, Virginia, opened, and guards moved John Brown to his funeral procession. Three companies of soldiers escorted the prisoner, who sat on his own coffin in a wagon drawn by two white horses, for the trip to the gallows.

Once there, Brown mounted the steep steps. The sheriff put a white hood on the prisoner’s head and adjusted a noose around his neck. After a delay of about fifteen minutes while officers arranged the troops that had escorted the wagon, the sheriff swung a hatchet at the rope supporting the trap door below Brown’s feet. The door snapped open and the man who had tried to launch a slave rebellion at Harpers Ferry two months before dangled, as one observer said, “between heaven and earth.”

That same observer, John T. L. Preston of the Virginia Military Institute, went on to explain that the “grand point” of the spectacle was its moral: that it was fatal to take up arms against the government.

John Brown was the first American to be executed for treason.

Before 1859 the punishment for treason in America had not been clear. In the early years of independence, as colonies tried to stamp out loyalty to the King, some colonies had broadened the definition of treason to include “preaching, teaching, speaking, writing, or printing,” and by the time of the ratification of the Constitution in 1788, twelve of the thirteen states had written their own laws against treason.

The Framers of the Constitution recognized the danger that leaders in the new nation might expand the definition of treason to sweep in political opposition, and after all, they had been “traitors” themselves just eleven years before. So the Framers specified in the Constitution a very limited definition of treason against the United States, saying that only levying war against the United States or “adhering to their enemies” or giving “aid and comfort” to an enemy could be considered treason. But they did not define a penalty for treason, leaving that to be determined by Congress.

They also voted to leave open the possibility for states to define treason as they wished. In the years after the ratification of the Constitution in 1788, most state constitutional conventions defined treason as a crime in their fundamental state law.

As men jockeyed for control of the government in the chaotic early years of the Republic, several men ran afoul of the federal and state treason clauses, but they did not pay the ultimate price for their missteps. Two men were convicted of treason against the federal government during the Whiskey Rebellion in the 1790s; President Washington pardoned them both. In 1838, Joseph Smith and five other Mormon leaders were charged with treason against Missouri for their part in the violent struggle between Mormons and non-Mormons in the state; they escaped before trial. Thomas Wilson Dorr was convicted of treason against Rhode Island for his part in the Dorr Rebellion of the 1840s and was sentenced to hard labor for life, but a popular protest won him amnesty after he had served a year.

Then, on October 16, 1859, abolitionist John Brown led 18 men to attack the federal armory in Harpers Ferry, Virginia—it became West Virginia in 1863—in order to seize guns from the armory, distribute them to local enslaved men, and lead them to freedom and self-government. As they cut the telegraph wires in the town in the dead of night, a free Black man, a baggage handler, stumbled upon them and they shot him. The sound attracted the attention of a local physician, who roused his neighbors. As they started to come awake, Brown’s men took the armory, which was defended by a single watchman who turned over the keys to the raiders.

At dawn the next day, a train came through the town, and its operators alerted authorities to the trouble in Harpers Ferry as soon as they got to a working telegraph. Meanwhile, Brown’s people captured Armory employees coming to work, and as news of the hostages spread, local militia converged on the site. As firing from the militia pinned Brown’s men down, they moved to a small brick building near the armory’s door. Intermittent shooting over the course of the day killed a number of Brown’s men as well as local militia before federal troops arrived on the morning of the next day, October 18.

Officers, commanded by Colonel Robert E. Lee, promised to spare the lives of Brown and his men if they surrendered, but Brown refused. Within minutes, soldiers had broken down the doors to their shelter and taken prisoner Brown and the seven of his men still alive.

On October 27 the state of Virginia began the trial of the still-wounded Brown for murder, inciting a slave insurrection, and treason against the state of Virginia. His lawyers argued that he could not have committed treason because he was not a resident of the state and so owed it no allegiance.

But the Virginia jury deliberated for only 45 minutes before they convicted John Brown of treason, agreeing with the prosecution that one did not have to reside in a state to be guilty of taking up arms against its government. On November 2 the judge sentenced Brown to death by hanging, a sentence that would be carried out after a legally required one-month delay.

Virginians like Preston applauded the decision. “Law had been violated by actual murder and attempted treason,” Preston wrote to his wife in a letter reprinted in the local newspaper, “and that gibbet was erected by law, and to uphold law was this military force assembled…. So perish all such enemies of Virginia! All such enemies of the Union! All such foes of the human race!”

The execution of John Brown for treason set a precedent.

And in just over a year, Virginians themselves would take up arms against the federal government. Men like Preston, who became an aide-de-camp to Stonewall Jackson, had to wonder if the precedent of hanging John Brown for treason might come back to haunt them.

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Notes:

J. Taylor McConkie, “State Treason: The History and Validity of Treason  Against Individual States,” Kentucky Law Journal Vol. 101: Iss. 2, Article 3.