Thursday, October 10, 2019

Carlton F.W. Larson's "The Trials of Allegiance"

Carlton F.W. Larson is Professor of Law at the University of California, Davis School of Law.

He applied the “Page 99 Test” to his new book, The Trials of Allegiance: Treason, Juries, and the American Revolution, and reported the following:
The Trials of Allegiance tells the story of the law of treason during the American Revolution, focusing primarily on the state of Pennsylvania as a case study. The opening chapters of the book explain the law of treason in colonial Pennsylvania, the disputes over treason that animated both American resistance activities and the British response to them, the trials of disloyal individuals before committees of safety in the year prior to independence, and the eventual adoption of a state treason statute.

Page 99 of my book takes place in early 1778, at a time when the capital city of Philadelphia had been captured by the British, and the state government had fled into exile. Large numbers of Pennsylvanians had aided the British during this invasion, and the unicameral state Assembly was determined to do something about them. It enacted an attainder statute, stating that these people would have a certain period of time in which to return for trial for treason; if they did not, they would be simply be deemed attainted of treason and their estates would be forfeited to the state.

From page 99:
In a highly significant provision, the act also authorized the Supreme Executive Council to issue additional proclamations of attainder for Pennsylvanians who joined the British army ‘within this state or elsewhere.’ This authority did not extend to cases of other forms of assistance to the British, even though such assistance would constitute treason under Pennsylvania law. Nonetheless, the authority was striking in its implications. Under English practice, bills of attainder required an act of Parliament; they could not be issued unilaterally by the king. By contrast, Pennsylvania was delegating this authority to its executive branch. The Council took full advantage of this new power. Between May 8, 1778 and June 15, 1778, it issued three separate proclamations, totaling 332 people. By the time the last proclamation was issued on April 27, 1781, nearly 500 people had been named. Their numbers represented a broad cross section of Pennsylvania society, and included lawyers, bakers, farmers, laborers, hatters, millers, innkeepers, gentlemen, surgeons, peruke makers, dancing masters, Indian traders, and mariners, among others.
I think this is a fairly representative excerpt. It shows how the Pennsylvania government addressed the issue of potential treason during a particularly difficult time, and examines that legislation against the backdrop of English precedents.

In other ways, though, the excerpt is somewhat unrepresentative as it deals primarily with persons named in the proclamations of attainder. For the most part, these people had their property seized, but they did not appear before juries for trial. The property seizures are an important part of the story of treason during the American Revolution, but they are not a primary focus of my book. I am much more interested in trials, with how juries responded to treason defendants, and to how different institutions dealt with the problem of disloyalty. The remainder of the book takes us directly into the nitty-gritty world of criminal trials, through the Revolution and onward to the trials in the 1790s arising from the Whiskey Rebellion and Fries’s Rebellion.
Learn more about The Trials of Allegiance at the Oxford University Press website.

--Marshal Zeringue