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February 17, 2019


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Steve L.

This is really fascinating, Jeff. I am looking forward to the future posts.

There was a lurking Enclave Clause issue in the 1859 John Brown raid. Brown was prosecuted in the Virginia courts for treason against Virginia, although the alleged crimes had occurred within the walls of the U.S. arsenal at Harpers Ferry. Putting aside whether Brown could commit treason against a state in which he was not a citizen and had never lived, the arsenal land had been acquired with the consent of the Virginia General Assembly in 1794.

Thus, the U.S. should have exercised exclusive jurisdiction over the offenses. President James Buchanan, however, wanted no part of the prosecution, and deferred to Gov. Henry Wise, who was eager to take control of the case. Brown's attorneys raised the treason issue, but they did not seek dismissal for lack of jurisdiction -- probably because they were rushed to trial and did not have an opportunity to research the acquisition of the property.

John Anthony Copeland and Shields Green, two African Americans who were captured following the raid, successfully challenged the treason prosecution, arguing that the Dred Scott decision held they could not be citizens and therefore could not commit treason. They were nonetheless convicted of murder and inciting servile insurrection and executed two weeks after Brown.

Steve L.

One more thing: Copeland could not raise the jurisdictional issue because he had been stationed outside the arsenal, at a rifle factory, and therefore not on federal property. Green was captured inside the arsenal, although he had earlier participated in taking hostages (including a great-nephew of George Washington) at nearby plantations. Brown, however, had entered the arsenal and stayed there throughout the three days of the raid.

Anthony Gaughan

Jeff, I agree with Steve. This is absolutely fascinating. I did not realize such a small percentage of federal land falls under the Enclave Clause. I'm looking forward to your future posts!

As for Harper's Ferry, I highly recommend to all Faculty Lounge readers Steve's superb books, "The 'Colored Hero' of Harper's Ferry: John Anthony Copeland and the War Against Slavery" (Cambridge University Press, 2015) and "John Brown's Spy: The Adventurous Life and Tragic Confession of John E. Cook" (Yale University Press, 2012).

Jack Chin

Steve L., great issues. My understanding is that at least under modern jurisdictional statutes, a state will have jurisdiction to prosecute a criminal act contemplated to occur in another jurisdiction if (1) a defendant or accomplice does acts constituting an attempt to commit the offense, or an element of an offense within the jurisdiction, (2) at least if the contemplated act is an offense in both jurisdictions. So in the John Brown raid case, at first blush there might be an argument that Virginia could prosecute for an attempt, conspiracy, or preparation to commit treason against Virginia which occurred outside of the federal enclave. But maybe the law was different then.

I would also wonder whether enslaved African Americans were noncitizen nationals of the U.S. notwithstanding their lack of citizenship and therefore could be subject to treason statutes as I understand, for example, noncitizen national Pilipinos were during the "commonwealth" period.

Steve L.

Both good observations, Jack. In Brown's case, of course, shots fired from within the arsenal killed people on the street, so the crimes were completed in Virginia -- although that does not seem to have been raised at the time. In any case, Brown was captured by federal troops (under the command of Robert E. Lee) on U.S. property, and immediately turned over to the Virginia authorities. There was certainly a basis for U.S. jurisdiction, which Buchanan specifically disavowed -- perhaps because he wanted Gov. Wise's support in the 1860 election (for which he was not renominated, as it turned out), and perhaps to avoid pressure to issue a commutation or reprieve.

Conspiracy to commit treason against Virginia was obviously a reach under modern standards -- there were no actual Virginians in Brown's small army -- but treason was employed more broadly in that era. The Christiana freedom fighters were prosecuted for treason in 1851, on the theory that they had attempted to nullify the Fugitive Slave Act. That theory was rejected however, which signaled the end of "constructive treason" as a concept in American criminal law.

AFAIK, Copeland and Green were the only African-Americans prosecuted for treason (stat or federal) in the antebellum era, and those charges were rejected by the court. Frederick Douglass famously declared that black men under slavery owed no allegiance to the United States, and Roger Taney opined that they were not part of the political community.


Steve, thanks for raising the interesting connection to John Brown. It looks like you and Jack have fleshed out the issues. Under the Enclave Clause, my understanding is that the arsenal would have been exclusively governed by federal law. As a matter of federal law, the substance of Virginia law would apply, but it would be enforced by federal authorities. My guess would be that you are right that the US could have charged them in federal court but deferred to Virginia for political reasons.

Anthony, it is impossible to know for sure how much federal land is covered under the Enclave Clause. The approximation of 6% makes sense to me, though. The Enclave Clause only applies to land that is purchased by the consent of the legislature. Most of the land in the West, however, has always been in federal hands. I also doubt that the US had much desire to create expansive enclaves within the western states for a number of reasons. I am planning to explore this history in detail in my next article.

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