One of the less-known features of American treason law is that the offense is not limited to treason against the United States. Forty-three states define the offense of treason against them, either in their state constitutions or in a criminal statute.1 Oregon’s statute is typical: “A person commits the crime of treason if the person levies war against the State of Oregon or adheres to its enemies, giving them aid and comfort.”2
Prior to the adoption of our current Constitution, all treason prosecutions were undertaken at the state level. The Articles of Confederation, our first national constitution, did not provide for a federal court system, leaving state prosecutions to fill the void. For example, Pennsylvania prosecuted a number of people during the American Revolution for treason against the state of Pennsylvania.3 But despite state-level prosecution, the offense was generally perceived as national in scope. Throughout the Revolution, people regularly referred to the offense of “treason against the United States.”4 Benedict Arnold, for example, was widely reviled as a traitor, not primarily against his home state, but against the United States as a whole.
Since the adoption of the United States Constitution and the creation of federal treason law, state treason prosecutions have been a rarity. Attorney J. Taylor McConkie, who has written the most extensive modern analysis of state treason laws, notes, “State treason laws are like a rusty tool in the backyard shed: we have a vague sense that the tool was useful at some point, so we would rather not discard it; but for now, we cannot imagine why we need it or how it ought to be used.”5
State treason laws are indeed a rusty tool today, but we must remember that the metal was once sharply polished and honed to a razor’s edge. The cases of the men convicted under these laws are among the most fascinating in American legal history: Thomas Wilson Dorr, a lawyer who claimed to be the governor of Rhode Island, convicted of treason against that state in 1844; the antislavery fighters John Brown and Edwin Coppoc, executed for treason against Virginia in 1859 after the failed raid on Harpers Ferry; and Walter Allen, a union leader convicted of treason against West Virginia in the early 1920s. All these defendants were animated by broad visions of social reform—visions that have largely been vindicated in the court of history. At the time, however, their causes were viewed as deeply threatening to entrenched interests, and they were accordingly prosecuted, not just as ordinary criminals, but as traitors against their states.
What happens when there are two governments in a state, both claiming to be legitimate? This perplexing question confronted Rhode Island in the early 1840s.
Of the original thirteen states, eleven adopted new constitutions after the Declaration of Independence. Only Connecticut and Rhode Island did not, choosing instead to be governed by their colonial charters. Connecticut finally adopted a constitution in 1818, but by 1841 Rhode Island was still governed by its 1663 charter, adopted nearly 180 years previously. Significantly, the charter’s allocation of representatives had not been updated to accommodate changes in population, and the charter government restricted suffrage to men who held a certain amount of real property.
The charter made significant political change impossible, and a popular movement arose in support of a constitutional convention to replace it. In the fall of 1841, the People’s Convention, composed of elected delegates, drafted a new constitution for Rhode Island.6 The resulting document, called the “People’s Constitution,” resolved the apportionment problems and guaranteed suffrage for all white adult males. The delegates arranged for a ratifying election to be held in December 1841. The expanded electorate approved the constitution by a vote of 13,947 to 52.7
The legislature of the charter government, however, denounced the People’s Constitution as illegal and enacted a law defining the exercise of office under it as a “usurpation of the sovereign power of this State” and an act of “treason against the state,” punishable by life imprisonment.8
The supporters of the People’s Constitution argued that their new constitution was now the governing law of Rhode Island, and they organized elections for April 18, 1842, under its provisions. Elected to the governor’s chair (which the People’s Constitution made significantly more powerful than under the 1663 charter) was a short, pudgy lawyer named Thomas Wilson Dorr.
Dorr was an unlikely leader of a popular movement. Born into a wealthy aristocratic family in Providence, he had earned a mathematics degree at Harvard College before entering into a legal career.9 His own parents discouraged him from seeking office under the People’s Constitution, warning him that his candidacy would bring “shame and disgrace” to his family and “hurry us sorrowing to the grave.”10 But Dorr had helped draft the People’s Constitution, and he was determined to make its reforms effective.
The new government was organized on May 3, 1842. Dorr was sworn in as governor and delivered an inaugural address. The legislature convened, divided its members into committees, and enacted various legislative measures, including a repeal of the law that made it treason to serve under the People’s Constitution. But the new government did not attempt to occupy the state capitol, which would have given it a more visible stamp of legitimacy, and instead conducted its business at a nearby foundry.
Two weeks later, Dorr determined that military action was necessary for his government to achieve firm control of the state. The state arsenal was held by the charter government, and Dorr and his supporters launched an unsuccessful attack (at the critical moment, a cannon failed to ignite). Fearing arrest by charter forces, Dorr fled the state, and much of his political support evaporated. Although he returned to Rhode Island in June and briefly attempted to rally forces against the charter government, his movement was clearly at an end. Dorr again fled the state, and the “Dorr Rebellion,” as it came to be known, was over.
Dorr nonetheless remained in serious legal jeopardy. On August 25, 1842, he was indicted by a Newport grand jury for treason against the state of Rhode Island. When he voluntarily returned to the state in October 1843, he was immediately arrested. In April 1844, Dorr’s trial for treason began in Newport.
Dorr wasn’t the first man tried for treason against Rhode Island. In the fall of 1842, the state had prosecuted Franklin Cooley, a Providence stonecutter who had served as a representative in the People’s Legislature. Cooley was charged under the statute that made it treason to serve under the People’s Constitution. The case ended in a hung jury, however, and the state did not retry him.11
Dorr, by contrast, was charged with treason by levying war against the state of Rhode Island based on the May 1842 attack on the arsenal and the June 1842 attempt to rally forces against the state. The prosecution condemned Dorr as a man who had “waged war on the sanctities of private life, for the accomplishment of his foul, ambitious, and nefarious purposes; to attain which he was ready and willing to imbue his hands in the blood of his friends and relatives. . . . [H]e had attempted with his own hands to light the torch of civil war against his relations and fellow-citizens.”12 Dorr’s counsel responded that Dorr had been acting as the legally elected governor of the state and his conduct could not constitute treason. The court found this argument inadmissible and significantly restricted the defense’s ability to present evidence to support it. The jury agreed upon their guilty verdict “immediately,” since, as one juror explained, “There was nothing for us to do, the Court made everything plain for us.”13 The sentence was life imprisonment at hard labor.
By most measures, the Dorr Rebellion ended in failure—the People’s Constitution was never implemented, and its leader was convicted of treason. But the momentum for political reform unleashed by the Rebellion led the charter government to finally approve the drafting of a new state constitution. In November 1842, Rhode Island voters ratified the document, ending Rhode Island’s peculiar status as the last state still governed by a colonial charter. The new constitution granted some, but by no means all, of the reforms that had been included in the People’s Constitution. In 1845, a new political coalition, dubbed the “Liberation Whigs” (so called because they supported liberating Dorr from prison), gained control of the state legislature and quickly enacted a law granting pardons to all the individuals convicted as a result of the Dorr Rebellion. Twenty months after his initial arrest, Thomas Wilson Dorr was again a free man.
For constitutional lawyers, the Dorr Rebellion is primarily remembered for its role in the 1849 U.S. Supreme Court decision in Luther v. Borden.14 The Court was asked to determine whether the charter government or the People’s Government was the legitimate government of Rhode Island in 1842. The Court refused to answer, concluding that it had no authority to resolve the question. The U.S. Constitution, the Court held, made Congress and the president—not the federal courts—the final arbiters of the legitimacy of state governments.
Like Thomas Wilson Dorr, John Brown was also a proponent of political reform, but he was willing to take even more radical actions in support of his vision. On the night of October 16, 1859, Brown and eighteen armed men crossed the Potomac River from Maryland and seized the federal arsenal in the small town of Harpers Ferry, Virginia (now part of West Virginia). Brown’s intent was to trigger a widespread slave revolt, which would ultimately lead to the abolition of slavery. The scheme was poorly planned, clumsily executed, and doomed to failure. It was quickly suppressed by federal troops led by Robert E. Lee and J. E. B. Stuart, but not without significant bloodshed. The raiders killed five men and wounded nine more, and ten of the raiders perished in the assault.15
For the state of Virginia, the raid was a terrifying violation of the state’s sovereignty. Although Brown had targeted only the federal arsenal, and thus seemingly waged war only against the institutions of the federal government, state prosecutors quickly indicted Brown and several of his associates for treason against the state of Virginia, as well as for murder and conspiracy. Virginia law defined treason to include levying war against the state, and the treason count duly included this charge. But Virginia law differed from federal law in that it also singled out establishing an independent government within the state as a distinct form of treason. Brown and his associates were charged with this form of treason as well, based on Brown’s drafting of a “Provisional Constitution,” under which he claimed to serve as commander in chief.16 President James Buchanan was pleased to leave the entire matter in the hands of Virginia authorities, and ten days after the raid collapsed, Brown’s trial began at the Jefferson County Courthouse in nearby Charlestown, Virginia.
The trial was a national media sensation, the first genuine “trial of the century.” A telegraph line was specially constructed to Charlestown, enabling reports of the trial to be spread instantaneously throughout the country. For the first time, Americans could read blow-by-blow accounts of an ongoing criminal trial in their daily newspapers.17
The outcome, though, was never really in doubt. No Virginia jury was going to acquit John Brown—and especially not the jury empaneled in Brown’s case. The nine slaveholders on the jury owned fifty-five enslaved people between them.18 After five days of trial, the jury took only forty-five minutes to find Brown guilty on all counts, and on November 2, 1859, he was sentenced to death. Another raider, Edwin Coppoc, was also convicted on the same counts of treason, murder, and conspiracy, and both men were executed in December 1859.19
In the audience at Brown’s hanging was a young actor named John Wilkes Booth. Booth was glad to see the “traitor” hanged, but he later admitted to a grudging admiration for Brown’s boldness, claiming “John Brown was a man inspired, the grandest character of this century!”20 The man Booth would later assassinate, Abraham Lincoln, agreed that Brown had been lawfully convicted: “Old John Brown has just been executed for treason against a state. We cannot object, even though he agreed with us in thinking slavery wrong. That cannot excuse violence, bloodshed, and treason.”21
Of course, the murder charges were more than enough to send Brown and Coppoc to their doom. Why did Virginia prosecutors include a treason charge? It made a powerful political statement about the significance of the raid, but it also eliminated the possibility of a pardon from Virginia’s governor, Henry Wise, who was viewed as overly emotional and unpredictable. Although Virginia governors could freely grant pardons in other capital cases, Virginia law required the assent of the General Assembly before a pardon could be issued for a treason conviction.22
Brown and Coppoc lost both their trials and their lives, but their cause, like Dorr’s, was ultimately vindicated. Shortly before his death, Brown stated that he was “quite certain that the crimes of this guilty land will never be purged away, but with blood.”23 Four years of civil war would stain the land with blood, but six years after Brown’s execution, the Thirteenth Amendment would finally fulfill Brown’s vision of eradicating slavery throughout the United States.
Over sixty years after Brown and Coppoc marched to the gallows, the same little courthouse in Charlestown, now part of West Virginia, was again teeming with people eager to watch another treason trial. In 1922, the state of West Virginia indicted twenty-four men for the offense of treason by levying war against the state. The cases arose from the so-called Mine Wars, a series of violent disputes between labor and management in West Virginia’s coal country. In response to a miners’ strike, the governor of West Virginia had declared martial law in Mingo County and had imprisoned over a hundred striking miners and union leaders. A large army of miners, eventually numbering over eight thousand, mustered in nearby Boone County, with the intent of marching through Logan County on their way to rescue the imprisoned men in Mingo County and end martial law. In response, the sheriff of Logan County summoned a counter-army of over three thousand men, equipped with a vast arsenal of weapons and even aircraft, which were used to bomb the miners’ positions.
It was an extraordinary scene. As historian James Green has noted, the miners’ army represented the “largest civil insurrection the country had experienced since the Civil War. . . . After five months in office, President Warren G. Harding was confronted with an almost unimaginable scenario: two armies of civilians—both filled with veterans of the Great War in Europe—were prepared to engage in mortal combat on American soil just two hundred miles from the nation’s capital.”24 On August 31, 1921, the much-dreaded conflict finally erupted in what became known as the Battle of Blair Mountain. The fighting continued for three more days, in scattered other mountain locations, until federal troops finally quelled the dispute on September 4. Despite an enormous expenditure of ammunition, casualties were low on both sides. Although the precise number is not known, one modern estimate is that approximately sixteen people died in the fighting.25
The state government, heavily controlled by powerful coal interests, was outraged by the miners’ actions and was determined to prosecute the leaders. In addition to the more obvious charges of murder and conspiracy, state authorities indicted twenty-four men for treason against the state of West Virginia by levying war against it.
Many observers were highly skeptical of the state’s resort to treason charges. The county prosecutor initially assigned to the cases chose to resign rather than pursue charges that he deemed legally inappropriate and “mean-spirited” (he was replaced by attorneys hired by the coal companies). The New York Times complained that “in West Virginia indictments for treason seem to be thrown about as carelessly as if they were indictments for the larceny of a chicken.”26 Even the presiding judge appeared to have some doubts, although he ultimately upheld the legality of the charges.
Although the normal venue for the cases would have been in either Boone or Logan County, defense lawyers successfully persuaded the prosecutors and judges to have the trials moved to Charlestown, the county seat of Jefferson County. William Blizzard, described as the “generalissimo” of the miner’s army, was the first man put on trial. After over three weeks of testimony and arguments, Blizzard was acquitted.
Prosecutors were more successful with the second trial, that of Walter Allen, president of a union local, who was convicted and sentenced to ten years in prison. Members of Allen’s jury had admitted to anti-union bias, and his case appears to have had fewer factual complications than Blizzard’s. Allen bears the significant distinction of being the only person convicted for treason against a state in the twentieth century, as well as the only twentieth-century American convicted on a levying-war charge, as opposed to an aiding-the-enemy charge. The United Mine Workers posted bail for Allen, pending his appeal, which would have raised significant questions about the scope of West Virginia’s treason law. But Allen skipped bail and was never heard from again, leaving the legal issues unresolved.27
The third person in line for trial was Frank Keeney, another prominent union leader. But the presiding judge concluded that the political climate in Jefferson County had so turned against the miners that it was impossible to seat an unbiased jury. After the judge ordered the trial moved to Morgan County, the prosecution abandoned the case against Keeney, fearing that the new venue made a conviction impossible. All the treason charges against the other defendants were then quietly dismissed, although several unsuccessful prosecutions for other offenses continued.28 With that, the most recent treason charges to be brought by a state government came to an end.
Although the miners had lost the battle, they ultimately won the war. President Franklin Roosevelt’s New Deal finally brought unionization to the West Virginia coal country after decades of failure. No longer would miners need to form an army to assert their rights against the state.29
Underlying all the state treason prosecutions was a fundamental question: Did states have any authority to punish the offense of treason at all? After all, one could argue that the United States Constitution reserves treason prosecutions solely to the federal government. The notion of treason against Oregon, for example, seems, on the surface, as implausible as Oregon holding a seat in the United Nations.
The power of states to prosecute treason was a question that vexed even the delegates to the Constitutional Convention. Connecticut delegate William Johnson took the most extreme position, arguing that states had no power over treason, even under the Articles of Confederation, because sovereignty rested in the Union alone. By contrast, Virginia delegate George Mason pointed out that “an act may be treason against a particular state which is not so against the United States,” such as Bacon’s Rebellion in Virginia.30
The defendants who faced state treason charges after the adoption of the Constitution all insisted that only the federal government could prosecute cases of treason—indeed, this was often their primary argument, one that would allow them to escape conviction even if they had committed all the underlying acts with which they had been charged. But the courts were unpersuaded, relying on three broad arguments to support the state prosecutions.
The first, and most straightforward, argument rested on a plain reading of the Constitution’s text. Article III defines “Treason against the United States,” but does not specifically limit the offense of treason against states; presumably if the document had intended to restrict state authority over treason it would have said so. Moreover, the Extradition Clause of Article IV refers to persons “charged in any State with Treason, Felony, or other Crime,” a phrasing that would make little sense if states had no authority to initiate treason charges.31
The second argument was historical, pointing to the debates in the Constitutional Convention, which appeared to leave this matter to the states. A proposal to give Congress the “sole” power to punish treason, for example, was defeated, six states to five. Moreover, courts noted that most states criminalize treason against the state. The states that consistently enacted these laws must have assumed that they were constitutionally authorized to do so.
The final argument was more pragmatic, pointing out that states have the ability to defend themselves against internal insurrections. The judge in the West Virginia mine case, for example, argued that “it would be a strange condition indeed if that Government should be vested with all the authority and power necessary to protect every individual within its borders, and yet be denied the power to protect its own life.”32
All these decisions assumed that the underlying conduct was an act of levying war solely against the state government, without any corresponding attack on federal institutions (which would have triggered federal law). In the midst of the Dorr Rebellion, United States Supreme Court Justice Joseph Story explained that treason “may be, and often is, aimed altogether against the sovereignty of a particular state.” For example, if people assemble to “overturn the government or constitution of a state,” but with no interference with the federal government, it is “treason against the state, and against the state only.”33 Since federal treason law does not apply to this conduct, states must be free to conduct their own prosecutions.
But what if the charge is not levying war against the state, as was the case in the Dorr Rebellion, John Brown’s Raid, and the Mine Wars, but adhering to the state’s enemies, giving them aid and comfort? Many states include this offense in their treason statutes, but prosecutions have been vanishingly rare and they are almost certainly unconstitutional.
The leading case arose during the War of 1812, when the state of New York indicted several men for treason against the state of New York for aiding the forces of Great Britain. In People v. Lynch, a New York state court dismissed the indictment, concluding that “Great Britain cannot be said to be at war with the state of New York, in its aggregate and political capacity.”34 Great Britain was at war with the United States, not with New York, and it was for the United States alone to punish this form of treason. A similar conclusion had been reached just a few years after the adoption of the Constitution by Massachusetts chief justice Francis Dana, who concluded that the Constitution had eliminated the state’s ability to punish treason by aiding the enemy.35
The decision in Lynch seems intuitively correct. Under our federal constitution, states have no role to play in foreign affairs, which are entirely entrusted to the federal government. States cannot declare war, engage in attacks on foreign countries, or negotiate treaties of peace. Thus, states themselves cannot have “enemies” in any meaningful sense of the word. Any enemy of a state would also be an enemy of the United States, and aid to such an enemy would be subject to federal treason law.
But so long as they are dealing with internal issues, states have considerable latitude to define the scope of treason against the state.36 The federal government is bound by Article III’s extremely narrow definition of treason. But the states are not. If a state wanted to, it could define bribery and corruption by state officials as treason against the state. It could define election fraud as treason. It could even define burglary of the state capitol as treason. There are strong prudential reasons against doing this, of course, and the Eighth Amendment would prevent states from imposing the death penalty for these offenses.37 But if a state was determined to use the term “treason” in a more expansive manner, nothing in the United States Constitution stands in the way.
So—treason against Oregon for stuffing a ballot box? It’s possible. But I wouldn’t hold my breath waiting for it to happen.