Offenses Against the State

• Author: Herbert L. Packer
• DOI: 10.1177/000271626233900107
• Published date: 01 January 1962
• Date: 01 January 1962
• Subject Matter: Articles

77

Offenses

Against

the

State

By

HERBERT

L.

PACKER

Herbert

L.

Packer,

B.A.,

LL.B.,

Stanford,

California,

is

Professor

of

Law,

Stanford

University.

He

received

his

degrees

from

Yale,

was

Law

Clerk

to

Judge

Thomas

Swan

of

the

U.

S.

Court

of

Appeals

for

the

Second

Circuit,

1949-1950,

and

practiced

law

in

Washington,

D.

C.,

1950-1955.

He

currently

is

active

in

the

fields

of

criminal

law

and

antitrust

law,

is

a

member

of

the

Attorney

General’s

Committee

on

Poverty

and

the

Ad-

ministration

of

Federal

Criminal

Justice,

and

has

been

teaching

at

Stanford

University

since

1956.

ABSTRACT:

Offenses

against

the

state

fall

into

two

cate-

gories :

conduct

inimical

to

the

very

existence

of

government,

and

offenses

which

affect

the

orderly

and

just

administration

of

public

business.

Treason,

which

shades

into

sedition

or

advocacy

of

overthrow,

and

espionage

are

examples

of

the

for-

mer.

Although

the

United

States

Constitution

was

designed

to

limit

the

definition

of

treason

to

exclude

"constructive

trea-

son"

as

used

in

England,

sedition

laws

giving

similar

effect

have

been

passed

in

times

of

crisis.

First

Amendment

problems

have

made

prosecutions

for

subversive

activities

of

livelier

interest

in

constitutional

than

in

criminal

law.

Examples

of

offenses

which

obstruct

governmental

operations

include

per-

jury,

bribery

and

corruption,

and

criminal

libel

and

contempt

by

publication.

Convictions

for

actions

to

obstruct

are

gen-

erally

difficult

to

obtain.

Prosecution

for

perjury,

however,

has

been

undertaken

in

a

number

of

cases

in

which

the

stat-

ute

of

limitations

proscribed

prosecution

for

espionage

or

a

more

serious

charge

or

where

a

conviction

on

another

charge

could

not

be

obtained.

It

has

always

been

difficult

to

delineate

satisfactorily

free

political

activity

and

extralegal

conspiracy

contemplating

force

and

arms

rather

than

persuasion

and

the

ballot.

To

the

credit

of

American

political

institutions,

patri-

otic

excesses,

popular,

legislative,

or

administrative,

have

gen-

erally

been

checked

by

an

independent

bar

and

an

independent

judiciary,

and

criticism

of

governmental

action

which

jeopard-

izes

political

liberty

is

freely

voiced

in

Congress,

the

courts,

and

the

press.—Ed.