ent; that there can be but one sovereignty against which treason can be committed, and they also, say that, if a person can be convicted of treason against a State, a very serious and embarrassing question may arise. In fact, they say such a question did arise in the case of the late rebellion in the United States, namely to which sovereignty would a citizen owe his allegiance? If the conduct of the citizens of a State amounted to treason against the Union, a citizen of that State who adhered to the Union would be guilty of treason to his State, while if he adhered to his State he would be guilty of treason to the General Government. Luther Martin, in his celebrated letter to the Legislature of Maryland relative to the proceedings of the Convention which adopted the Federal Constitution, of which he was a member, referred to this precise question and said: "The time may come when it shall be the duty of a State, in order to preserve itself from the oppression of the General Government, to have recourse to the sword; in which case, the proposed form of government declares, that the State, and every one of its citizens who acts under its authority, are guilty of a direct act of treason; reducing, by this provision, the different States to this alternative, that they must tamely and passively yield to despotism, or their citizens must oppose it at the hazard of the halter, if unsuccessful; and reducing the citizens of the State which shall take arms to a situation in which they must be exposed to punishment, let them act as they will-since, if they obey the authority of their State government, they will be guilty of treason against the United States; if they join the General Government, they will be guilty of treason against their own State." 12 "To save the citizens of the respective States from this 12 Mr. Bryce says there can be treason against a State, though instances of it have been rare. "A State commands the allegiance of its citizens, and may punish them for treason against it. The power has rarely been exercised, but its undoubted legal existence had much to do with inducing the citizens of the Southern States to follow their governments into secession in 1861. They conceived themselves to owe allegiance to the State as well as to the Union, and when it became impossible to preserve both, because the State had declared its secession from the Union, they might hold the earlier and nearer authority to be paramount. disagreeable dilemma, and to secure them from being punishable as traitors to the United States, when acting expressly in obedience to the authority of their own State, I wished to have obtained, as an amendment to the third section of this article, the following clause: "Provided, That no act or acts done by one or more of the States against the United States, or by any citizen of any one of the United States, under authority of one or more of the said States, shall be deemed treason, or punished as such; but in case of war being levied by one or more of the States against the United States, the conduct of each party towards the other, and their adherents respectively, shall be regulated by the laws of war and nations. 13 But this proviso was rejected by the Convention." Von Holst says: "This question appeared on a broad stage during the Civil War. Many Southerners, like General Robert E. Lee and Alexander H. Stephens, the Vice-President of the Confederate States, were opposed to secession, but, after secession was once ordained by their respective States, they declared themselves not only willing to go with their States, but bound to go with them, unless they were to be guilty of treason, for they owed allegiance to their respective States, and indeed only to them." "The Federal Government," continues the author, "naturally refused to admit this, and Chief Justice Chase, in Shortridge v. Macon, 13a decided that no 'rebel' could defend himself from the charge of treason by pleading the ordinances and commands of his State. Logically, however, this question, on account of its connection with other problems of constitutional law, brought to the surface by the Civil War, leads to a whirlpool of conflicting conclusions. ""14 Judge Tucker, in analyzing the clause of the Constitution which refers to treason against the United States, said: Allegiance to the States must now, since the war, be taken to be subordinate to allegiance to the Union. But allegiance to the State still exists; treason against the State is still possible. One cannot think of treason against Warwickshire or the department of the Rhone." Bryce's American Commonwealth, Vol. 1, 407. 13 Elliot's Debates, Vol. 1, 382, 383. 13a Chase's Decisions, 136. 14 Von Holst's Constitutional Law of the United States, 157. "Treason against a State by this clause is left to its own definition; unless any should doubt whether this was intended, a reference to the subsequent clauses will remove it." Then he quotes the clause now under consideration and adds, "This clearly refers to a treason against a State, of which it alone could have jurisdiction."'15 On the contrary, Jameson has stated the doctrine to be: "Treason is a crime against sovereignty, a violation of one's allegiance. Hence, there is really no such thing as treason against any political body in the Union but the United States. If a State, by its courts, punishes treason, it must be not as treason against itself, but as treason against the Union; and, in this view, the propriety of that State legislation which defines treason against the State and affixes to it particular penalties is doubtful. ''16 Andrews says, "There can be no treason against a State, that if a State punishes treason, it must be not as treason against itself, but as treason against the Union." In 1814 certain persons were indicted in the State of New York. The indictment alleged that they were citizens of the State of New York and of the United States of America and that they adhered to and gave aid and comfort to the enemy, by supplying them with provisions of various kinds, on board a public ship of war, upon the high seas. It was attempted by the prosecution to support the averments of the indictment under a New York statute, which declared treason against the people of that State to consist in levying war against the people of the State, within the State, or adhering to the enemies of the people of the State, giving to them aid and comfort in the State or elsewhere. It was claimed by the prosecution that unless the language of the statute applied to the case of the defendants then on trial that it was nugatory. But the Supreme Court of the State in People v. Lynch,1 said, that this by no means follows, "for there can be no doubt that such a state of things might exist, as that treason against the people of this State might be com 15 Tucker on the Constitution, 618, 619. 18 mitted. This might be by open and armed opposition to the laws of the State, or a combination and forcible attempt to overturn or usurp the government." But such circumstances did not exist in that case, said the court. Great Britain was not at war with the State of New York. It was held that as the defendants were not charged with treason against the United States and as the United States was at war with Great Britain and not the State of New York, the indictment could not be supported. A case of historical interest arose in Rhode Island under the following circumstances. That State until 1843 retained the Constitution which Charles II granted it in 1663. Under this charter suffrage was limited to those who owned real estate, and to the eldest sons of such persons. Great opposition developed to this system and a strong party grew up which favored a more liberal Constitution. A convention was finally held which adopted a new Constitution for the State and provided for the election of new State officers. This Constitution was ratified by a majority of the electors of the State, and at an election held under its provision, Thomas W. Dorr was elected Governor on April 18, 1842. Samuel W. King, who was elected Governor on the same day under the old charter form of government, refused to yield the office to Dorr, and this resulted in each party resorting to arms. The adoption of the new Constitution had the effect of weakening Dorr's strength, and his supporters largely abandoned him. He was subsequently indicted for treason against the State, but fled to Connecticut and then to New Hampshire. He subsequently returned to Rhode Island, where he was arrested, tried and convicted and on June 25, 1844, was sentenced to be imprisoned for life. In 1847 he was released under a general amnesty act, and restored to his civil rights in 1851.19 19 Ten years after Dorr's conviction the following act was passed by the legislature of the State: "Whereas, The General Assembly of this State hath from time to time exercised the powers conferred upon it by the charter of King Charles the Second, 'to alter, reverse annul or pardon, under their common seal or otherwise, such fines, mulets, imprisonments, sentences, judgments and condemnations as shall be thought fit:' "And, whereas, The same powers were continued to the General Assembly under the existing Constitution of this State by the terms These are believed to be the only cases where the question has been presented to the Supreme Court of a State. (See Appendix No. 15.) They establish the basic principles of the doctrine of treason against a State. They hold thereof, which provide that the General Assembly shall continue to exercise the powers they have heretofore exercised, unless prohibited by this Constitution;' and by the provision that 'the Supreme Court established by this Constitution shall have the same jurisdiction as the Supreme Judicial Court' theretofore existing: "And, whereas, an alleged political offense, for which a judgment has been rendered in favor of the State, may in certain cases furnish a proper occasion for the exercise of such high powers: "And, whereas, upon the trial of Thomas Wilson Dorr for the alleged crime of treason, there was an improper and illegal return of jurors in this, that one hundred and seven jurors from one political party were designedly selected by the sheriff, in part with the aid and assistance of persons acting in behalf of the State, and only one juror from the other political party, and the accused was tried in a county other than that in which he resided, and he was allowed but two days with any, and but few hours with some of the panel of jurors, in which to inquire as to their disqualifications or obtain proof thereof, and was not allowed after the peremptory challenge of several such jurors, and after obtaining proof of such disqualifications, to withdraw said peremptory challenges, and to challenge said jurors for cause, or to have a new trial in consequence thereof: "And, whereas, the court denied the jury the right to pass upon questions of law, though said court had previously, in accordance with the common law, held that the jury might in criminal cases 'take upon themselves the responsibility of deciding questions of law;' and the accused was not allowed to show in justification or in explanation of his motives or intent, that he acted under a constitution which had been adopted by a large majority of the people of the State, and in accordance with what he deemed to be his right and duty in consequence thereof: "And, whereas, the said Thomas Wilson Dorr was thereby wrong. fully convicted: "And, whereas, it is desirable for the best interests of this State, that the wrongs thereby inflicted upon said Dorr, and upon the people of the State, should be redressed, and that the animosities created by the civil commotions which preceded and accompanied said trial should cease and determine: "And, whereas, it has been the custom of our English forefathers (but for which there hath been happily no occasion heretofore in the history of this country), whenever judgments for treason have been thus illegally and wrongfully obtained, to reverse by act of Parliament such judgments, and to direct, to the end that justice be done to those who have been thus convicted, that the records thereof be cancelled or destroyed: "It is enacted by the General Assembly as follows: "Section 1. The judgment of the Supreme Court, whereby Thomas |