Page:United States Reports, Volume 1.djvu/68

 Rh  cuted; and the Contitution which they eventually agreed upon, was incontrovertibly a diolution of the government, as far as related to the powers of Great Britain, but not in relation to the powers which had been before exercied by councils and committees.

The Attorney-General has urged that, at leat, as oon as the Government, under the new contitution was formed, which he ays was on the 28th of November, 1776, the members of council being then choen, and the legilature actually aembled, the overeignty of the tate was complete, and allegiance followed by a neceary conequence, without the intervention of any poitive law. But the advocates for the prioner again object, that the government cannot be aid to be etablihed, until there is a meeting of all its parts, and that as the Executive Council never met till the 4th of March, the tate was incapable of affording protection, and, therefore, was not entitled to allegiance, before that time.

On this occaion, the entiments of everal 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 repective writers, and, principally indeed, on account of the intrinic weight of the reaons by which their doctrines are upported. Locke ays, that when the Executive is totally diolved, there can be no treaon; for laws are a mere nullity, unles there is a power to execute them. But that is not the cae as preent in agitation; for before the meeting of Council in March, 1777, all its members were choen, and the legilature was completely organized; o that there did antecedently exit a power competent to redres grievances, to afford protection, and, generally, to execute the laws; and allegiance being naturally due to uch a power, we are of opinion, that from the moment it was created, the crime of High Treaon might have been committed by any peron, who was then a ubject of the Commonwealth. The act of the 11th of February, 1777 expresly authories this opinion; for, we find it there aid, "“That all and every peron and perons (except prioners at war) now inhabiting &c. within the limits of this tate; or that hall voluntarily come into the ame hereafter to inhabit, &c. do owe, and hall pay allegiance, &c.”?"

This, therefore, contradicts the idea, uggeted by the advocates for the prioner, that allegiance was not due till the meeting of the executive council on the 4th of March enuing; and, although he cannot be convicted upon the act, yet allegiance being due from the 28th of November, 1776, when, as I have already oberved the legilature was convened and the members of council were appointed, treaon, which is nothing more than a criminal attempt to detroy the exitence of the government, might certainly have been committed, before the different qualities of the crime were defined, and its punihment declared by a poitive law. 1 ''Blackt. Com.'' 46.

Having thus dimied the preliminary quetion, whether the prioner’s defence would avail him upon an indictment for High Trea- on,