Treason and Aiding the Enemy

• Author: Captain Jabez W. Loane, IV
• Pages: 02

1. INTRODUCTIOX

It has been said that no crime is greater:' it has been termed

. . the most serious offense that may be committed Bgainst the Cnited States:"P it has been classified as "the highest of sll crimes." Chief Justice Marshall once commented: "As there is no crime which can more excite and agitate the passions of men, no charge demands more from the tribunal before which it is made a deliberate and temporate inquiry." All of these quotations refer to the same offense-the crime of treason.

It is a crime which, in many nays, is set apart from all others. It is the only crime specifically denounced by the Constitution of the United States.6 It is the only federal crime upan which eonviction must be predicated on the testimony of two eye-uitnesses to the overt act of the offense.' It may only be committed in time of war or quasi war since it must be predicated either in levying war against the United States or in aiding an "enemy." It is the only crime which, if successfully committed, may cease to be a crime. As Sir John Harrington noted:

Treason doth newr prosper: what's the reason? Why, if it prosper, none dare call ~t treason.'

*This article was adapted from B thesis presented to The Judge Advocate General's School, U.S. Arm), Charlotteswlle, Virginia, rhile the author was a member of the Thirteenth Career Course. The op~nmnii nnd emelusions presented herein are those of The aurhor and do not necessarily represent the views of The dudm Advocate General's School or snv other mvern-

U'. MANE,

IV**

'I.

Throughout the ages the motivations for treason have been as numerous as the crimes themselves. Some hare committed treason for money, some for pride, power, or prestige, some for more elusive ideological goals. In medieval England, whae OUT ex-ploration of the la\\- begins. the treason cases generally dealt with machinations against the monarch or in plotting to alter the succession to the throne. In the days of Elizabeth I, the ceses developed a religious flavor. In later years. the factors hare included financial gain or political conviction. Today the suggestion has been advanced that the modern scientist, because of the universality of his technical knouledge. feels himself under a lesser duty to obey national ;~yalty.~

The annals of treason have tainted the rich and poor alike; the powerful as well as the common citizen. Through its history hare passed such notable figures as Thomas Becket, Sir Walter Raleigh, Anne Bolepn, Sir Thomas &re, Benedict Arnold, and Jefferson Davis; it has included such strange persanalitm as Guy Faiskes, John Broivn. 1Tillm.m Joree and Ezra Pound. And it has encompassed the unnumbered hundreds who passed through the must?- rolumes of the State Trialso on their way to the "usus1 punishment" and oblivion.

It is not the purpose of t h x article to examine these individuals in depth or the details of the "offenses" which brought them to tnsl. Rather it is intended to explore the historical develapment of the civil offense of treason and the parallel militmy offense of aiding the enemy; to compare the two; and to consider the defenses to the respective offenses. For Indeed. until comparatively recently, the mere fact of the indictment was tantamount ta conviction and little other than outright denial was available to an unfortunate defendant.

It is hoped that this article will help to solve some of the many problems which may easily be conceived. When. for example, may an American sufficiently shake off his citizenship that he can aid America's enemy and awid a treason charge? Is physi-cal opposition to the enforcement of the lams of the United States by its officers treason? If so. were the students at the University of Mississippi guilty of treason by participating in the 1962 riots? Can a citizen "adhere" to an enemy without "aiding"

m e (1816) [hereafter cited as How

TREASOK

him, and, conrerrely can he "aid" the enemy without "adherence"? Is a soldier who conducts propaganda lectures for the enemy in a POY camp guilty of giving them "aid'? If so would it make any difference if none of the other prisoners were affected? What IS the status of the alien who resides in this country? Isthis status affeeted if he is a citizen of an "enemy" country? The situations mag be ingenuously contrived. The courts must wrestle for the answel-s.

11. THE HISTORY OF TREASOK A. THE ESGLISH BACKGR0C:TD

There is na better Introduenon to the law of treason in the Enited States than a Short review of the English IBU., since the present American law 1s direcly traceable to a statute published by Edward Ill in 1360,:O During the early fourteenth century England mas in a state of flux. These were days of constant civil war attended lby one parliamentary crisis after another. \Vhm one faction gained power it frequently subjected the nobles and landowners of the other to the harassment of tnal far treason based solely on political or quasi-political considerations. As no legal definition of treason existed, no one could foretell what action or word might be interpreted as committing the offense." An additional troublesome area concerned the fact that lands and possessions of anyone convicted of treason were subject toattainder or forfeiture.12

There was, understandably. increasing agitation that the offense be more rigidly defined. To the barons and large landowners this argument w.s quite persuasive in view of the forfeiture pru visions.13 In addition, the definition was of importance in restraining the power af the crown to suppress any subject by arbitrary construction of the law

greater punishment as a i "example." The eame fare bPfeli the comieted murderer of the Duke of Glauehester, Proceedings Against John Hall, 1 Haw St Tr 162 (1399).

-'Clarke, furicitwes and Twoson an l&, 14 ROYAL Hm. SOC. TRASS. 4th 66 (1931).

'"

Perhaps because of continuing pros~ure Edward 111 further modified the attainder pro\lmans in 1360 to praiide no forfeiture far p e m ~ n ~ not

attainted in their lifetime. Statute af \i'ertminiiter, 1360, 34 Edw 3, e. 12.

AGO sa118

Erentualiy the King yielded to the pressures. There resulted the famous statute of 26 Edward 111 nhich defined the offense as being committed:

15'hen a man doth compass or imagine the death of our lard the King,or a i our Lady hir Queen, OT a i then eldest a m and heir; or If a mandarh violate the King's companion, or the King's eldeat daughter unrrarried, or the aiie [of] the King's eldest son and heir; or If a man do levr xar sea ins^ our lord the Kin. ~n h:s realm. or be adherent to

. . the King'a eneaies in his realm, giiing them aid and comfort in the realm or elsewhere. and thereof be pmrabl) attainted of open deed by t h pevie I" their eandman

The statute goes on to define fire other acts which mar constitute treason (e.& counterfeiting, assaulting rertain of the King's officers), and concludes with what, for those days, must have been a novel proposition, that no other act would constitute treason unless made so by act of King and ParIiament.'j Shorn of the language concerning the monarch and those portions intended to purify the S U C C ~ S S ~ O ~ ,

the statute can be fairly said to state the

Amencan definition today.

That Edward I11 defined the offense vas laudable. Yet many of the pre-statutaq problems remained. One reason for this vas that the courts possessed the power of interpreting the statute and could thus put whatever meaning they chose on such vague phrases as "compass or imagine" and "giving them aid or comfort."1a In 1668. for example, memhers of B riotous group engaged in pulling down "bawdy houses" who failed to obey a Constabie's order to desist were convicted of treason, the court holding that this constituted ''levying war'' against the King.'. An additional problem was the personality of the monarch. Under the "strong" monarchs the offense tended to have much wider definition. During the reign of Henry VIII. the crime is considered to hare had its xidest interpretation. As a matter of fact. Henry VI11 extended treason to corer such situations as wishing harm to the King or calling him a tyrant." Honever, a reading of the cases in the days of Elizabeth I would tempt a contrary conclusion as

Statute of Purrepori, 135fl. 25 Edw, 3, Stat. i, c. 2

I h d

Far an extreme pormon see the Trial of Algernon Sidney, 9 HoTr 818 (1683) Sidney %as conrieted solely on eiidence of POPrerslon Ofunpublished msnureriprs. It IS difficult to see horv thin "compassed the death" of the King

'-Trlai of Peter Messenger 6 HOW Si. T?. 879 (1668).

"For B good discussion ai'treason during the reign of Henv 1.111. see Thormly, The Tmaaa L6g%slafion o i Xrnry VIII, 11 ROYAL HIST SOC TRAPS. 3d 81 (19171.46 *GO GsltB

TREASON

to treason's golden age. It is reported that after the Northern Rebellion of 1669, Elizabeth had some 1,200 peasants executed as traitors, many on mere suspicion, and without the benefit of a trial."

Thus, notwithstanding the apparent clarity af the Statute af Edward 111, the law of treason continued to be draw by a wavering hand. Justice was dependent upan the whim of the King or the policy of the judge. The rights of an accused seemed tohave returned to the early days of anarchy. It vas not until 1695that the substantive law was backed up by proeedural guarantees. This was the date of the enactment of the swcailed "Treason Trials Act" which was to play an important part in the gmwth of the American I.%U..~~ Considering the harsh justice meted out by the Tudor courts, this statute is remarkable in expanding the rights of an accused. First, it provided that the accused was entitled to a copy of the indictment five days prior to trial (although not ihe names of the witnesses).*' Secondly, he was entitled to be represented by counsel.21 Commoners were granted a jury trial consisting of 12 freeholders who were required to vote unanimously in order to convict.la In addition, a statute of Imitations was established as three...