1781.
cuted; and the Conſtitution which they eventually agreed upon, was incontrovertibly a diſſolution of the government, as far as related to the powers of Great Britain, but not in relation to the powers which had been before exerciſed by councils and committees.
The Attorney-General has urged that, at leaſt, as ſoon as the Government, under the new conſtitution was formed, which he ſays was on the 28th of November, 1776, the members of council being then choſen, and the legiſlature actually aſſembled, the ſovereignty of the ſtate was complete, and allegiance followed by a neceſſary conſequence, without the intervention of any poſitive law. But the advocates for the priſoner again object, that the government cannot be ſaid to be eſtabliſhed, until there is a meeting of all its parts, and that as the Executive Council never met till the 4th of March, the ſtate was incapable of affording protection, and, therefore, was not entitled to allegiance, before that time.
On this occaſion, the ſentiments of ſeveral eminent Civilians have been read to us; not as authorities binding upon our judgment, but as a means of information derived from the great learning and abilities of the reſpective writers, and, principally indeed, on account of the intrinſic weight of the reaſons by which their doctrines are ſupported. Locke ſays, that when the Executive is totally diſſolved, there can be no treaſon; for laws are a mere nullity, unleſs there is a power to execute them. But that is not the caſe as preſent in agitation; for before the meeting of Council in March, 1777, all its members were choſen, and the legiſlature was completely organized; ſo that there did antecedently exiſt a power competent to redreſs grievances, to afford protection, and, generally, to execute the laws; and allegiance being naturally due to ſuch a power, we are of opinion, that from the moment it was created, the crime of High Treaſon might have been committed by any perſon, who was then a ſubject of the Commonwealth. The act of the 11th of February, 1777 expreſsly authoriſes this opinion; for, we find it there ſaid,
“That all and every perſon and perſons (except priſoners at war) now inhabiting &c. within the limits of this ſtate; or that ſhall voluntarily come into the ſame hereafter to inhabit, &c. do owe, and ſhall pay allegiance, &c.”?
This, therefore, contradicts the idea, ſuggeſted by the advocates for the priſoner, that allegiance was not due till the meeting of the executive council on the 4th of March enſuing; and, although he cannot be convicted upon the act, yet allegiance being due from the 28th of November, 1776, when, as I have already obſerved the legiſlature was convened and the members of council were appointed, treaſon, which is nothing more than a criminal attempt to deſtroy the exiſtence of the government, might certainly have been committed, before the different qualities of the crime were defined, and its puniſhment declared by a poſitive law. 1 Blackſt. Com. 46.
Having thus diſmiſſed the preliminary queſtion, whether the priſoner’s defence would avail him upon an indictment for High Trea-ſon,
