Treason

Treason

The Treason Clause is a product of the awareness of the Framers of the “numerous and dangerous excrescences” which had disfigured the English law of treason and was therefore intended to put it beyond the power of Congress to “extend the crime and punishment of treason.” 1 The debate in the Convention, remarks in the ratifying conventions, and contemporaneous public comment make clear that a restrictive concept of the crime was imposed and that ordinary partisan divisions within political society were not to be escalated by the stronger into capital charges of treason, as so often had happened in England.2

Treason and the U.S. Constitution

Thus, the Framers adopted two of the three formulations and the phraseology of the English Statute of Treason enacted in 1350,3 but they conspicuously omitted the phrase defining as treason the “compass[ing] or imagin[ing] the death of our lord the King,” 4 under which most of the English law of “constructive treason” had been developed.5 Beyond limiting the power of Congress to define treason,6 the clause also prescribes limitations upon Congress’s ability to make proof of the offense easy to establish 7 and its ability to define punishment.8

Treason: Developments

Resources

See Also

References

This text about Treason is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 1] 2 J. ELLIOT, DEBATES IN THE SEVERAL STATE CONVENTIONS ON ADOPTION OF THE CONSTITUTION 469 (1836) (James Wilson). Wilson was apparently the author of the clause in the Committee of Detail and had some first hand knowledge of the abuse of treason charges. J. HURST, THE LAW OF TREASON IN THE UNITED STATES: SELECTED ESSAYS 90- 91, 129-136 (1971).

[Footnote 2] 2 M. Farrand, supra at 345-50; 2 J. Elliot, supra at 469, 487 (James Wilson); 3 id. at 102-103, 447, 451, 466; 4 id. at 209, 219, 220; THE FEDERALIST No. 43 (J. Cooke ed. 1961), 290 (Madison); id. at No. 84, 576-577 (Hamilton); THE WORKS OF JAMES WILSON 663-69 (R. McCloskey ed. 1967). The matter is comprehensively studied in J. Hurst, supra at chs. 3, 4.

[Footnote 3] 25 Edward III, Stat. 5, ch. 2, See J. Hurst, supra at ch 2.

[Footnote 4] Id. at 15, 31-37, 41-49, 51-55.

[Footnote 5] Id. “[T]he record does suggest that the clause was intended to guarantee nonviolent political processes against prosecution under any theory or charge, the burden of which was the allegedly seditious character of the conduct in question. The most obviously restrictive feature of the constitutional definition is its omission of any provision analogous to that branch of the Statute of Edward III which punished treason by compassing the death of the king. In a narrow sense, this provision perhaps had no proper analogue in a republic. However, to interpret the silence of the Treason Clause in this way alone does justice neither to the technical proficiency of the Philadelphia draftsmen nor to the practical statecraft and knowledge of English political history among the Framers and proponents of the Constitution. The charge of compassing the king’s death had been the principal instrument by which ‘treason’ had been used to suppress a wide range of political opposition, from acts obviously dangerous to order and likely in fact to lead to the king’s death to the mere speaking or writing of views restrictive of the royal authority.” Id. at 152-53.

[Footnote 6] The clause does not, however, prevent Congress from specifying other crimes of a subversive nature and prescribing punishment, so long as Congress is not merely attempting to evade the restrictions of the Treason Clause. E.g., Ex parte Bollman, 8 U.S. (4 Cr.) 75, 126 (1807); Wimmer v. United States, 264 Fed. 11, 12-13 (6th Cir. 1920), cert. denied, 253 U.S. 494 (1920).

[Footnote 7] By the requirement of two witnesses to the same overt act or a confession in open court.

[Footnote 8] Cl. 2, infra, “Corruption of the Blood and Forfeiture”.

Doubtful State of the Law of Treason Today

The vacillation of Chief Justice Marshall between the Bollman9 and Burr 10 cases and the vacillation of the Court in the Cramer 11 and Haupt 12 cases leave the law of treason in a somewhat doubtful condition. The difficulties created by Burr have been obviated to a considerable extent through the punishment of acts ordinarily treasonable in nature under a different label,13 within a formula provided by Chief Justice Marshall himself in Bollman. The passage reads: “Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason. The wisdom of the legislature is competent to provide for the case; and the framers of our Constitution… must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation.” 14

Treason and the U.S. Constitution

Resources

See Also

References

This text about Treason is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 9] Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).

[Footnote 10] United States v. Burr, 8 U.S. (4 Cr.) 469 (1807).

[Footnote 11] Cramer v. United States, 325 U.S. 1 (1945).

[Footnote 12] Haupt v. United States, 330 U.S. 631 (1947).

[Footnote 13] Cf. United States v. Rosenberg, 195 F.2d 583 (2d. Cir. 1952), cert denied, 344 U.S. 889 (1952), holding that in a prosecution under the Espionage Act for giving aid to a country, not an enemy, an offense distinct from treason, neither the two-witness rule nor the requirement as to the overt act is applicable.

[Footnote 14] Ex parte Bollman, 8 U.S. (4 Cr.) 126, 127 (1807). Justice Frankfurter appended to his opinion in Cramer v. United States, 325 U.S. 1, 25 n.38 (1945), a list taken from the government’s brief of all the cases prior to Cramer in which construction of the Treason Clause was involved. The same list, updated, appears in J. Hurst, supra at 260-67. Professor Hurst was responsible for the historical research underlying the government’s brief in Cramer.