1781.
far this defence, under the circumſtances of the caſe, would avail the priſoner upon an indictment for High Treaſon.
The Attorney-General, has referred to the declaration of independence, on the 4th of July, 1776, when the freedom and ſoverignty of the ſeveral ſtates were announced to the world; and alſo, to a reſolution of Congreſs recommending the formation of ſuch governments, as were adequate to the exigency of the public affairs. The ſiſter ſtates purſued different modes of complying with this recommendation. The citizens of Connecticut, New-Hampſhire and Rhode-Iſland, conſidered themſelves in a ſituation ſimilar to that which occurred in England, on the abdication of James the ſecond; and, wanting only the form of a Royal Governor, their reſpective ſyſtems of government have ſtill been continued: while the other ſtates adopted temporary expedients, till regular conſtitutions could be formed, matured, and organized.
And here it is contended, that, prior to the conſtitution under which we now live, the ſtate of Pennſylvania was governed by a council of ſafety, and committees. But to this, it is anſwered, that until laws were paſſed by a competent legiſlative power, no government could be ſaid to exiſt; and, as the act of the 28th of January 1779, for the revival of the laws, virtually declares that they were ſuſpended from the 14th May, 1776, till the 11th February, 1777, it is inferred, that during that period, no allegiance was due and no treaſon could be committed.
Although I think this point immaterial to the priſoner, ſince a government might have exiſted, and yet not be of ſuch a nature as to affect him, it cannot be denied, that a kind of government, independent of Great Britain, was adminiſtered in Pennſylvania, antecedent to the eſtabliſhment of the preſent conſtitution. The powers of ſovereignty were then lodged with Congreſs, under whoſe authority a council of ſafety had been elected by the people, and were employed, in conjunction with other committees, to conduct the war, and to ſecure, as far as ſo imperfect a ſyſtem could, the rights of life, liberty, and property, within this ſtate. It is certain, indeed, that a formal compact is not a neceſſary foundation of government; for, if an individual had aſſumed the ſovereignty, and the people had aſſented to it, whatever limitations might afterwards have been impoſed, ſtill this would have been a legal eſtabliſhment—No expreſs proviſion, however, has been at any time made, for defining what ſhould be treaſon againſt thoſe temporary bodies; but it may be well enough to obſerve, that treaſon is a crime known to the Common-Law.
Afterwards, we find, that a General Convention, elected by the people, met on the 15th day of July, 1776, for the expreſs purpoſe of framing a new government; and during the ſeſſions of this body, its members, collectively, aſſumed the powers of making ordinances, of appointing members of Congreſs, and of defining High Treaſon, and its puniſhment—All their proceedings and injunctions, except the ordinance reſpecting treaſon, were approved and exe-