Author:James Willard Hurst

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Treason is the only crime defined in the United States Constitution. Article III, section 3, declares that

Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no ATTAINDER OF TREASON shall work corruption of blood, or forfeiture except during the life of the person attainted.

State constitutions contain similar limiting definitions of treason against a state. However, since national independence there has been little action or development of doctrine under the state provisions. The notable exceptions are the trials of Thomas Wilson Dorr (1844) and of John Brown (1859) which ended in convictions of treason by levying war against the states of Rhode Island and Virginia, respectively. State histories include a few abortive attempts to employ treason INDICTMENTS against people who incurred the wrath of powerful elements in the community. Thus indictments were brought against Mormon leaders in Missouri in 1838 and in Illinois in 1844; for political reasons the Missouri charge was not pressed and the defendants escaped jail; a mob murdered Joseph Smith shortly after his arrest on the Illinois indictment. Such isolated instances aside, the law of treason in the United States has been almost wholly the product of debates over making the national Constitution and decisions of federal courts under Article III, section 3.

As it has developed under the Constitution, the law regarding treason has strikingly mingled concern for the security of government and the legal order and concern for the freedom of private individuals and groups. The crime deals with the most serious threats to the existence of the state. In adopting the Constitution everyone took for granted that, since the people were creating a new SOVEREIGNTY, it must have authority to protect itself. Congress has reflected this judgment of the gravity of the matter by prescribing penalties that may extend to life imprisonment, or perhaps even to execution. Where charges have fallen fairly within the constitutional definition of the offense, judges have not hesitated to make firm application of the law. However, on its face the Constitution takes a limiting approach to the crime. Treason, says Article III, section 3, shall consist "only" in two named types of conduct; Congress is thus barred from adding new categories of treason, as it is also explicitly limited in fixing penalties. Moreover, the treason clause puts a stringent limit on the executive in prosecuting the crime; absent a confession in open court, by constitutional mandate the prosecution must muster testimony of two witnesses to the same overt act that the accused committed in seeking to carry out the treason. Federal judges in cases arising under the treason clause have followed a restrictive approach in marking the outer boundaries of the crime. Thus in one aspect the treason clause guards the security of the government. But in another dimension it sets limitations that make it functionally analogous to provisions of the BILL OF RIGHTS, protecting CIVIL LIBERTIES of private individuals and groups.

The constitutional emphasis on restricting the scope of the crime of treason is a marked departure from the main directions the law had taken in England and in this country before 1789. Before the eighteenth century, in practice, official policy had given clear primacy to the security of government, often more obviously to serve the interests of particular powerholders than to serve the common good.

From the fourteenth to the eighteenth century, English political history included aggressive use of charges of treason as weapons of partisan conflict; prosecution was usually vindictive and pressed with scant regard to fair procedure or careful insistence on clear proof or reliable evidence. The only counterweight to this abusive trend was the continuance of the statute of 25 Edward III (1350), stating seven categories of high treason?notably

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those of levying war, adhering to enemies, or seeking "to compass or imagine the death of our lord the King"?and asserting that only Parliament might enlarge the definitions of treason, thus forbidding judges to extend the offense by interpretation. The restrictive emphasis of the statute of Edward III was stressed by the English treatise writers from whom lawmakers in the new United States got most of their knowledge of the course of English policy regarding treason. In particular, EDWARD COKE, Matthew Hale, and WILLIAM BLACKSTONE spoke of abuse of vague, extended definitions of the crime as instruments of partisan combat, imperiling the general liberty. Thus Hale warned, "How dangerous it is by construction and analogy to make treasons, where the letter of the law has not done it; for such a method admits of no limits or bounds, but runs as far as the wit and invention of accusers, and the odiousness and detestation of persons accused will carry men." Offsetting such warnings, however, the English treatises also brought to the knowledge of lawmakers in North America a considerable range of decisions in which English judges had, despite the limit declared in Edward III's statute, greatly enlarged the offense of treason by construction.

Security in the most elemental sense was at stake for the English colonies in North America under the threat of French and Indian wars and in the new states torn through the AMERICAN REVOLUTION by bitter divisions between those loyal to the Crown and those asserting independence. Thus in the colonies and in the new states during the years of the Revolutionary War, statute books included many broadly and sometimes vaguely defined offenses of subversion, in dramatic contrast to the limited definition of treason later written into the national Constitution and thereafter typically included in constitutions of the states. Though colonial and early state legislation sometimes borrowed the language of the act of Edward III, we must realize that at least by the late eighteenth century lawyers here would be familiar, through the standard English treatises, with the expansive readings which English courts had given the old statute.

With adoption of the national Constitution we encounter introduction of a restrictive emphasis to balance the security concerns previously dominant in the law of treason. There is not a great deal about the treason clause in the records of the framing and RATIFICATION OF THE CONSTITUTION. But what there is shows sensitivity to lessons that policymakers here felt they should draw from English experience of the dangers to individual and...

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