Carlton Larson is Professor of Law at University of California Davis School of Law. This interview is based on his new book, The Trials of Allegiance: Trials, Juries, and the American Revolution. (Oxford University Press, 2019)
JF: What led you to write The Trials of Allegiance?
CL: The book’s origins date to the spring of 1996, when I was trying to develop a topic for my college senior thesis. I became fascinated by the “forgotten founder” James Wilson, one of America’s most eminent lawyers and a signer of the Declaration of Independence and the U.S. Constitution. I discovered that Wilson had defended men accused of treason against the state of Pennsylvania during the American Revolution, and this immediately sparked my interest – how did Americans come to prosecute other Americans for treason when the American Revolution was itself an act of treason against Great Britain? I thoroughly enjoyed writing the thesis, and I returned to the subject of treason several times as a law professor, now armed with a stronger understanding of law and the legal system. I began developing the material into a book in 2010. Now, twenty-three years after I began, the book is finally out.
JF: In two sentences, what is the argument of The Trials of Allegiance?
CL: The law of treason was central to the American Revolution, encompassing a host of issues from debates over the legitimacy of resistance activities to the treatment of Loyalists. Although a variety of institutions addressed potential disloyalty, ranging from the military to committees of safety, juries proved surprisingly lenient of accused traitors, reflecting a deep-seated belief that the death penalty was an inappropriate punishment for treason.
JF: Why do we need to read The Trials of Allegiance?
CL: The book emphasizes several aspects of the American Revolution that have often been overlooked.
First, the American Revolution was a violent, bloody civil war that pitted neighbors against neighbors and fathers against sons. Everyone was potentially a traitor, either to Great Britain or to the United States. The leaders of the Revolution were deeply concerned that internal enemies, loyal to Great Britain, were lurking in the background, waiting for just the right moment to strike. Inevitably, the desire to take pre-emptive action against these perceived enemies clashed with traditional notions of Anglo-American liberty. This book shows how the founding generation addressed the competing goals of liberty and national security during a time of national crisis and significant internal division.
Second, colonial Americans began accusing other Americans of “treason against America” long before the Declaration of Independence was signed. Indeed, in trials before committees of safety in 1775 and early 1776, persons were convicted of this offense and sentenced to imprisonment. These trials demonstrated the functional establishment of American sovereignty and independence and the development of an American national identity well before the formal assertion of independence.
Third, one would not expect that persons accused of loyalty to Great Britain would fare particularly well before American juries during the Revolution. But grand juries repeatedly refused to indict persons accused of treason; trial juries refused to convict; and, in the few cases in which they convicted, trial jurors sought clemency for the defendant. In so doing, the jurors consistently treated treason differently than other capital crimes. Persons accused of treason were not incorrigible criminals, but friends and neighbors who had chosen the opposite side in a political dispute and thus were capable of reformation and assimilation back into the community. Eventually, even people who had fled to Great Britain were welcomed back; only Benedict Arnold, the arch-traitor, remained beyond possibility of redemption.
Finally, there has been very little written about how criminal juries actually operated in revolutionary America. This book provides a careful look at what were perhaps the most important jury trials of the Revolution, where ordinary men would sit in judgment of the allegiance of their peers. The book explores who served on juries, and how defense counsel shaped the jury through the creative employment of peremptory challenges on the lines of religion, age, wealth, ethnicity, and militia service.
JF: When and why did you decide to become an American historian?
CL: When I was six years old, my family spent a summer in Massachusetts and we visited many historic sites associated with the American Revolution. I have been fascinated by American history ever since. I majored in American history in college, and, although I do not have a Ph.D. in history, I have continued to write and teach about legal history as a professor at the UC Davis School of Law.
JF: What is your next project?
CL: My next project is a trade book with Ecco Press, tentatively titled Treason: A Citizen’s Guide to the Law. This book carries the story of treason forward from where The Trials of Allegiance leaves off. Look for it in 2020!
JF: Thanks, Carlton!