Peace, the Constitution, and Rebellion, 1781–1800

The years following Cornwallis’s surrender in 1781 saw a few more treason cases, and a large number of cases of persons accused of aiding British prisoners to escape. Summary data on treason prosecutions are presented. Returning Loyalists were largely well treated. The state’s last treason indictment, dealing with the Connecticut land dispute, was issued in the late 1780s. The Constitutional Convention adopted a Treason Clause, the meaning of which was tested in trials resulting from the Whiskey Rebellion and Fries’s Rebellion. The prosecution and defense disagreed over whether these rebellions amounted to levying war against the United States. This debate contained many echoes of the earlier debate over resistance to British measures, and would not be conclusively resolved until the nineteenth century, if then.

From Independence to Invasion, 1776–1778

This chapter explains that between the adoption of the Declaration of Independence and the creation of firmly established civilian courts, Pennsylvania experienced a long, chaotic interregnum punctuated by the British invasion and occupation of Philadelphia. Although Pennsylvania’s radical new government enacted a treason statute, punishment of disloyalty continued to rest with extrajudicial entities, including committees of safety and the military. The scope of military jurisdiction was seriously debated. County courts slowly reopened and began hearing cases of misprision of treason (a lesser charge), but no cases of high treason were heard. Faced with the threat of military invasion, the Assembly’s controversial suspension of habeas corpus led to the exile of prominent Quakers to Virginia in 1777, accompanied by vigorous debate over the propriety and legality of this action

Resistance and Treason, 1765–1775

This chapter discusses two broad themes that emerged following the passage of the Stamp Act in 1765. First, there was a growing desire in Great Britain to punish acts of colonial resistance as treason and to bring resistance leaders to England for trial under the statute of 35 Henry VIII. Colonial Americans responded that resistance activities did not legally constitute treason and that trials of alleged American traitors in England, far from a local jury, were illegal. Second, and somewhat paradoxically, colonial Americans readily hurled accusations of treason at their political enemies, ranging from colonial governors to Parliament, its ministers, and even the king himself. “Traitors” (and “enemies to their country)” were now denounced for betraying America, their “country,” and even liberty itself. Once the War for Independence had begun, it was easy to conclude that these individuals were no longer traitors in a rhetorical sense, but real traitors who directly threatened the American cause.

Introduction

The Introduction opens with a vignette of James Wilson, prominent attorney and signer of the Declaration of Independence, fighting for his life against members of the Philadelphia militia in the “Fort Wilson” incident of 1779. It then turns to the primary themes of the book: treason and juries. Treason was a central issue of the American Revolution, shaping the early debates over the legality of British actions, the treatment of British adherents, and eventually the suppression of internal rebellions. Juries played a critical role in this process, and this book provides the most detailed analysis of eighteenth-century American jurors yet written. The book focuses on Pennsylvania, as this was the most critical jurisdiction for the law of treason.

The Philadelphia Treason Trials, 1778–1779

Philadelphia County witnessed the war’s most significant treason trials. The grand jurors who screened the proposed treason indictments were wealthy, prominent Philadelphians who had played significant roles in resistance activities, yet they indicted persons accused of treason at a lower rate than other grand juries did for other crimes. The chapter then introduces the trial jurors. Only 58 men filled 264 identifiable jury seats, and many of these served only once, leaving the other jurors to serve on multiple trials. By working backward from the jurors’ demographic characteristics, one can determine the strategies that defense counsel used in selecting jurors. Under eighteenth-century practice, defendants could peremptorily strike up to 35 jurors, whereas the prosecution could strike none. The chapter presents evidence suggesting that defense counsel used their challenges on the bases of religion, age, ethnicity, wealth, occupation, and political beliefs to shape juries that were more favorable to the defense.

Resentment and Betrayal, 1779–1781

This chapter describes the aftermath of the Philadelphia acquittals, which generated enormous resentment, leading to vituperative newspaper exchanges over the jury’s role in treason cases, interference with a misprision of treason trial, and the armed attack on the home of James Wilson. The state introduced a new noncapital offense of treasonable misdemeanor. Benedict Arnold’s notorious betrayal led to Pennsylvania’s last two wartime executions for treason. One was ordered without a trial under the attainder proclamations. The other, of a man charged with joining the Indians and prosecuted by Arnold’s brother-in-law, Edward Burd, was a dubious extension of Pennsylvania treason law and explicable only in the context of the fervor over Arnold. The Pennsylvania Supreme Court asserted its authority to issues writs of habeas corpus, and issued an important opinion about the duty of allegiance to Pennsylvania. The court also addressed a significant tax revolt in Berks County, a precursor to the more well-known rebellions of the 1790s.

Treason against America, 1775–1776

This chapter discusses how Americans were at open war with British forces, while claiming to be formally loyal to the king. Persons who aided the British could not be tried for treason in a court of law, so Pennsylvania employed committees of safety to conduct trials of disloyal persons. At the county level, committees punished primarily verbal offenses, but the state committee in Philadelphia heard cases of actual disloyalty. The persons convicted were imprisoned on charges of “high treason.” These ad hoc and legally questionable detentions were an impetus for the Declaration of Independence, which put the punishment of traitors on a sounder footing. For their part, British efforts to punish disloyal Americans all faltered and the suspension of habeas corpus permitted American prisoners to be effectively treated as prisoners of war.

Treason in Colonial Pennsylvania

This chapter provides a summary of treason law in Pennsylvania from the founding of the colony by William Penn in 1682 through the outbreak of the War for Independence. After several halting starts, Pennsylvania formally adopted English treason law in 1718. This law was rooted in the 1351 English Statute of Treasons and the chapter explains the broad contours of that law as it was developed in the succeeding centuries. Treason law, however, was rarely employed in colonial Pennsylvania, even though the Seven Years’ War, the march of the Paxton Boys, and the disputes with Virginia and Connecticut over land claims (hostilities that amounted to low-level open warfare) provided possible opportunities for its employment. The chapter also addresses whether members of American Indian tribes were subject to Pennsylvania treason law.

The Philadelphia Treason Trials, 1778–1779

This chapter begins by introducing the defendants, who were predominantly Quaker and Anglican artisans of relatively modest means. Some had actively supported resistance activities and many had connections to the jurors and grand jurors. The chapter then turns to the role of defense counsel, the witnesses and testimony presented at trial, the court’s rulings on contested issues, and jury deliberations. It argues that the verdicts were shaped in significant part by aversion to the death penalty as a punishment for treason. Even the few juries that convicted defendants petitioned the state’s executive authority for clemency, as did hundreds of other Philadelphians. Although treason was nominally the highest crime, juries simply didn’t view it that way. Persons who had sided with the enemy were not incorrigible criminals, but friends and neighbors who had made an unfortunate political choice and were fully capable of redemption.

The Winding Path to the Courthouse, 1778

This chapter begins by summarizing the cases of misprision of treason heard in the county courts. The state government began a controversial attainder policy, a process that led to extensive property confiscations. The court of oyer and terminer, consisting of the three Pennsylvania Supreme Court justices, finally opened. Through grand-jury charges, the justices explained their understanding of treason law. Following the British evacuation of Philadelphia in June 1778, the state government sorted through charges of disloyalty against hundreds of individuals, eventually winnowing them down for trial that fall. The trial of Joseph Malin in Chester County in September 1778 was the first treason case heard by a Pennsylvania court during the Revolution. The defendant was represented by high-quality defense counsel, the court issued moderate rulings, and the jury acquitted the defendant, patterns that would recur in future cases.