TREASON

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 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 political liberty of loose resort to treason prosecutions. james wilson was probably the ablest lawyer on the constitutional convention's Committee of Detail, which took the responsibility of adopting a restrictive rather than an extensive approach to defining treason. In the Pennsylvania ratifying convention, Wilson twice—on his own initiative and without any criticisms of the provision voiced by an alert and suspicious opposition—praised the treason clause as including protection of civil liberty along with protection of government. In his law lectures delivered at the College of Philadelphia in 1790 and 1791, Wilson emphasized the constitutional provision by devoting an entire lecture to it. He made the centerpoint of his analysis the importance of carefully bounding the crime: "It is the observation of the celebrated Montesquieu, that if the crime of treason be indeterminate, this alone is sufficient to make any government degenerate into arbitrary power." Two fears were prominent in the limited attention given the treason clause in adopting the Constitution: that holders of official power would use the treason charge to suppress legitimate, peaceful political opposition and to destroy those who were out of official favor, and that popular fear and emotion might be stirred under the dread charge to produce convictions without additional evidence. Subsequent federal court opinions recognized this restrictive background, in decisions limiting extension of the offense. Speaking for the Supreme Court in ex parte bollman and swartwout (1807) in a matter indirectly involving a treason charge, Chief Justice john marshall declared that "to prevent the possibility of those calamities which result from the extension of treason to offences of minor importance, that great fundamental law which defines and limits the various departments of our government, has given a rule on the subject both to the legislature and the courts of America, which neither can be permitted to transcend." In the first treason case to reach the Supreme Court, cramer v. united states (1945), the Court reaffirmed the propriety of this approach, quoting with approval Marshall's further admonition that "It is, therefore, more safe, as well as more consonant to the principles of our constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the constitutional definition, should receive such punishment as the legislature in its wisdom may provide."

Three key elements enter into the crime of treason: an obligation of allegiance to the legal order, and intent and action to violate that obligation. First, treason is a breach of allegiance. A citizen owes loyal support to the sovereignty within which he lives or from which he derives his citizen's status. There are circumstances under which by the law of a foreign state an individual may owe it allegiance at the same time that he owes fealty to the United States; thus an individual may be a citizen of the United States because he was born here, and also be a citizen of another nation because he was born to nationals of that country. But dual nationality does not relieve an individual of obligation to refrain from volunteering aid or comfort to the foreign nation when it is at war with the United States. The restrictive tone attending treatment of treason charges had an analogy in world war ii decisions which put on the government the burden of proving by clear and convincing evidence that citizens of the United States who had been lawfully present in an enemy country at the outbreak of war and were conscripted into enemy military service on the basis of their dual nationality had not complied under duress. However, in 1961 Congress amended the governing legislation to put the burden of proving duress on the individual claiming to hold United States citizenship. The change from the court decisions to Congress's amendment revealed the persistence of tension between values placed on governmental security and on individual security, familiar in the treatment of the treason offense. One other facet of the allegiance element deserves note. Though the matter has not been presented to a court in this country, a resident alien enjoying the nation's protection owes it obedience to its laws while he is a resident. Such an individual is probably guilty of treason if he commits acts that would constitute the offense if done by a citizen.

To convict one of treason, the government must prove that the accused had a treasonable intent to levy war or to adhere to an enemy and to give aid and comfort to that enemy. Since betrayal of allegiance is at the heart of the offense, the requisite wrongful intent must be specific—a focused purpose to bring about a betrayal. In many crimes requiring proof of a guilty mind, the law holds an individual responsible as intending the reasonably foreseeable consequences of his conduct, even though he pleads that he did not intend to bring about the particular outcome for which he is charged. In Cramer v. United States the Supreme Court opinion included some incautious language which appeared to adopt that position. But the weight of authority in earlier federal court decisions and in rulings after Cramer indicates that the prosecution must prove that the defendant did intend to challenge the full authority of government at home (levy war) or to deliver aid to an enemy, as a substantial, independent element in his purpose, whatever other ends he may have had in mind. To this extent it appears that the prosecution must prove that the accused had a specific intent to levy war or to aid enemies. However, this requirement does not necessitate proof of guilty purpose by explicit statement or direct admission; the prosecution may prove the guilty intent by strong inference from the context of the accused's behavior.

The calculated limitations of the treason clause of the Constitution offer persuasive evidence that proof of the crime should require showing a specific intent. The Constitution obviously narrows the prior scope of treason by omitting any analogue to the offense of "compassing" or "imagining" the death of the king. Under that head, old English doctrine erected "constructive" treasons by inferring the wrongful intent from speech or writings that complaisant judges ruled might have the "natural consequences" of stirring popular discontent out of which violence might erupt to endanger the state. The weight of authority in federal court decisions has recognized that the policy of Article III, section 3, is to prevent expansion of the offense by building upon loose inferences of intention.

The character of the requisite wrongful intent varies according to which of the two heads of the offense is in issue. To be guilty of levying war against the United States, the individual must intend to use organized force to overthrow the government. Under the older English law treason existed if there was intent by collective force to prevent enforcement of a particular statute or other lawful order, or to obtain some particular benefit for a group, contrary to law. This English doctrine was followed in two early instances involving violent group resistance to enforcing particular federal laws—collection of a federal excise on whiskey (the whiskey rebellion in western Pennsylvania in 1794) and collection of a federal property tax (the fries ' rebellion, also in Pennsylvania, 1799). However, the later weight of authority is that nothing short of intention to overthrow the government suffices to make out the offense. Significant of this trend was the disposition of a late nineteenth-century effort to revive the old English doctrine. Following the Homestead Riot of 1892, several strike leaders were indicted for levying war against the state of Pennsylvania. But the indictments were later quietly dropped, while use of the treason charge met with prompt criticism even from conservative legal commentators. Violent group actions short of challenge to the existence of the government are now treated under heads of incitement, riot, or unlawful assembly.

Adhering to an enemy requires intent to render the enemy tangible support ("aid and comfort"). Established doctrine has defined "enemies" as only those against whom a legally declared state of war exists. However, in the twentieth century, experience of such undeclared shooting hostilities as the Korean police action has raised the question of the continued vitality of the older limitation. The accused does not rebut the existence of the requisite intent for treason by pleading that he acted for mixed purposes, as to make money by selling goods to an enemy, if one of his purposes was in fact to render performance useful to the enemy. However, the accused may seek to persuade the court that he acted solely for a nontreasonable purpose, as when out of parental affection a father gave shelter to his son who was present in the country in wartime as an enemy agent. So, too, one whom the outbreak of war finds in a hostile country probably will not be found to have had treasonable intent merely because he took a job there to meet the necessities of earning a living, though the employment may have made some contributions to the enemy's strength.

In addition to proving wrongful intent, the government must prove that the accused committed some overt act to carry out his treasonable purpose. The calculated omission from the constitutional definition of treason of any counterpart of the English charge of compassing the death of the king underlines the requirement of proving overt action. The function of the overt act element, said the Supreme Court in Cramer v. United States, is to ensure "that mere mental attitudes or expression should not be treason." However, the Court's opinion in Cramer clouded definition of the requirement thus put on the prosecution; the Court seemed to say that the act must be of such character as itself to be evidence of the treasonable intent—a position apparently contrary to the emphasis common in other court rulings that the intent and the act elements are distinct. But in haupt v. united states (1947) the Court somewhat clarified the matter: the behavior of the accused proved by the required testimony of two witnesses need not on its face evidence treasonable intent; an act apparently innocent, such as a transfer of money, might suffice if, in the light of other evidence of the context of the action, what the accused did could fairly be understood to aid an enemy. However, Haupt indicated that evidence of the context illuminating the significance of the overt act must also be supplied by two witnesses to the same circumstances. On the other hand, by the weight of authority, to prove the offense the prosecution need not establish that the accused succeeded in delivering aid to the enemy; it is enough that he took overt action to attempt delivery, though the Cramer opinion also contains language suggesting that effective delivery of aid should be shown. Mindful of abuses of charges of treason to suppress peaceful political opposition, English doctrine, adopted by judges in the United States, declares that a meeting to plan against the government is not a sufficient overt act to establish treason; conspiracy to levy war is not the levy of war, said Coke. But there is no comparable line of authority that a meeting to plan giving aid to an enemy is insufficient as an overt act of adherence to the enemy.

About the constitutional requirement of "testimony of two witnesses to the same overt act" hangs the uncertainty earlier noted, created by the Supreme Court opinion in Cramer, whether the act so proved must itself evidence treasonable intent or constitute actual delivery of aid to the enemy. Otherwise, rulings under the two-witness requirement have been straightforward. Courts have shown care to enforce the substance of the requirement, but not with doctrinaire rigidity. Two witnesses must testify directly to the act charged in the indictment; it will not suffice that there is two-witness evidence of a separate act from which it might be inferred that the charged act occurred. Two-witness testimony to the accused's admissions of an act does not meet the requirement of two-witness evidence to the act itself. However, the testimony of the two witnesses need not be identical or precise as to all aspects of the behavior cited as the overt act, nor need the testimony minutely cover every element into which an episode of behavior might be analyzed; the evidence is sufficient if it joins in identifying what reasonable jurors can regard as a connected transaction. Thus in Haupt the Supreme Court held that it was not fatal to the government's case that two-witness testimony did not show the enemy agent entering the accused's apartment, where it did show that he entered the building in which the accused had an apartment, and entered only as the accused's licensee, since the prosecution showed by other two-witness testimony that no other tenant in the building sheltered the agent.

This record suggests regard for the restrictive policy embodied in the constitutional history of treason. However, probably in large measure it also indicates that through most of its history the country has enjoyed substantial political stability. In any event the record shows little vindictive resort to the charge and few cases carrying politically controversial tones. Most actions taken against Loyalists in the American Revolution were to confiscate property. Because of the scale of the civil war and the de facto belligerent status which events assigned the Confederacy, there was no material resort to treason prosecutions in that contest, though clearly those who took arms in behalf of the seceded states levied war against the United States. jefferson davis, President of the Confederacy, was indicted for treason. But the government faced strong arguments that it improperly charged treason against those conducting a rebel government which had achieved the status of a recognized belligerent. Though the government did not formally concede the point, neither did it bring Davis to trial on the indictment. Treason cases arising out of the Whiskey Rebellion (1795), the Fries disturbance (1799–1800), the Burr conspiracy (1807), thomas jefferson's embargo (1808), and resistance to enforcement of the Fugitive Slave Law (1850), grew out of difficult domestic political issues but were of limited practical impact. Treason prosecutions by state authorities incident to the Dorr Rebellion in Rhode Island (1844) and John Brown's raid in Virginia (1859) were exceptional for their broad political bearing. Some cases carried tones of domestic ideological disputes over the country's entry into world war i. But this cast was notably absent from treason prosecutions incident to World War II.

By its terms the constitutional definition of treason puts some limits on governmental agencies in dealing with subversion. Congress may not increase the categories of conduct which the government may prosecute under the name of treason, nor may it extend the reach of the offense by including under the heads of adherence to enemies or levying war conduct lacking the historic elements of those crimes, or by mandating an extensive view of the evidence deemed relevant to establishing the elements of such treasons. The treason clause pointedly restricts Congress's authority to fixing penalties for the crime, and the position of the clause in Article III (establishing the judicial power of the United States) underlines the implication that problems of applying the law of treason are ultimately for the courts. In their turn, federal judges have generally found in the language and history of Article III, section 3, a mandate against extending the range of the offense in doubtful cases. The two-witness requirement implies a further limitation on Congress. In light of that strict limitation on the prosecution's case, Congress should not have authority to avoid the two-witness requirement simply by changing labels and legislating under other names against offenses that involve all the elements of treason within the constitutional definition. However, the Supreme Court's decision in ex parte quirin (1942) cast doubt on the validity of this analysis. One of several Nazi agents landed secretly on the east coast of the United States to sabotage war production plants was an American citizen. The Court rejected the argument that he must be prosecuted for treason by adhering to the enemy, and not for an offense against the laws of war incorporated in an act of Congress. Clearly the accused had committed treason. But the Court focused on the fact that the offense under the laws of war included another element—that the accused, having the status of an enemy belligerent, had passed the country's defenses in civilian dress with a hostile purpose.

Though it approaches the borderline of propriety, the Court's decision in Quirin might find support in analogues that date from the First Congress. There is no evidence that those who adopted the limiting constitutional definition of "treason" meant thereby to bar legislators from creating other crimes of subversion, the elements of which did not turn on the distinctive character of levying war or adhering to enemies. Congress in fact has defined and provided for punishment of other offenses of subversive or hostile activity against the security of the government, and federal courts have sustained such statutes. United States v. Rosenberg (1953) presented charges of conspiracy to violate the Federal espionage act, which provides penalties for "whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation," communicates or delivers to any foreign government or its agents information relating to the national defense. The federal court of appeals held that the treason clause did not bar creation of this offense, because "in the Rosenbergs' case, an essential element of treason, giving aid to an "enemy' is irrelevant to the espionage offense." In United States v. Drummond (1965) the same appeals court dealt with a charge of conspiracy to violate the same statute by a serviceman in the United States Navy who between 1957 and 1962 delivered classified military materials to Soviet agents. Reaffirming that the treason clause did not bar creation of the espionage offense, the court found it "unnecessary" to invoke the difference relied on in Rosenberg, because it found differences in the required mental element in the crimes of treason and espionage. It pointed out that the espionage act required a showing only (1) that the defendant transmitted information with intent "or reason to believe" that it would be used for a forbidden result; and (2) with intent or reason to believe that it would be used either "to the injury of the United States or to the advantage of a foreign nation." In contrast, the court implied, treason requires proof of a specific intent, and a specific intent both to aid an enemy and to injure the United States.

Though the constitutional definition of treason may do no more formally than limit the kinds of conduct that may be prosecuted under the name of treason, there are respects in which it may have broader practical effect in restricting action of official agencies. The Constitution abolished the barbarous or oppressive penalties that were once a distinguishing mark of the crime. But legislation still allows heavy penalties for the offense; in light of Supreme Court limitations put on resort to the death penalty in other crimes there may be doubt whether a court may order execution of a convicted traitor, but the law still permits imposing a life sentence. Thus it may be of consequence whether the prosecutor can make out a case of "treason" or is limited to another charge which may carry a lesser penalty. Political history teaches that the mere accusation of treason, rather than of another crime, carries peculiar intimidation and stigma. Federalist treason prosecutions arising out of the Whiskey Rebellion (1794) were designed to stain supporters of Jefferson and james madison with the imputation of subversive intent. The Jefferson administration sought to use the charge of treason (1808) to make examples against widespread opposition to the Embargo imposed to press England to respect rights of neutral use of the high seas. Democratic accusations of treason against the hartford convention protesting the conduct of war with England (1814–1815) helped that venture to weaken a tottering Federalist party structure. A prosecution for treason undertook to discredit opposition to enforcement of the Fugitive Slave Law (1850). To break rank-and-file morale, Pennsylvania authorities brought treason indictments against leaders of the Homestead Strike (1892). In the cold war emotions of the 1950s, epithets of "treason" were employed in reckless attacks on the record of Democratic administrations in conducting relations with communist Russia and China. Such episodes validate the cautions expressed among those who adopted the national Constitution, that the definition of treason be limited so that this country would not repeat the old English experience of using the charge to destroy legitimate, peaceful political competition. Adoption of the first amendment guarantees of free speech, press, assembly, and petition provided more direct and comprehensive declarations of the values of free political processes, and eventually these guarantees found substantial enforcement in decisions of the Supreme Court. That the First Amendment tended to preempt the field was early indicated when it became the prime reliance of those who attacked the constitutionality of the Sedition Act of 1798. (See alien and sedition acts.) However, given the extent to which concern for safeguarding peaceful public policy debate and activity figured in adopting a restrictive definition of treason, constitutional history here offers as yet unrealized possibilities for safeguarding First Amendment values.

James Willard Hurst
(1986)

Bibliography

Abrams, Stuart E. 1976 Threats to the President and the Constitutionality of Constructive Treason. Columbia Journal of Law and Social Problems 12:351–392.

Chapin, Bradley 1964 The American Law of Treason: Revolutionary and Early National Origins. Seattle: University of Washington Press.

Hill, L.M. 1968 The Two-Witness Rule in English Treason Trials. American Journal of Legal History 12:95–111.

Hurst, James Willard 1971 The Law of Treason in the United States. Westport, Conn.: Greenwood Press.

Simon, Walter G. 1961 The Evolution of Treason. Tulane Law Review 35:667–704.

Stillman, Arthur M. and Arner, Frederick R. 1954 Federal Case Law Concerning the Security of the United States. 83rd Congress, 2d session. Printed for the use of the Senate Committee on Foreign Relations. Washington, D.C.: Government Printing Office.

Wiener, Frederick Bernays 1962 Uses and Abuses of Legal History. The Law Society's Gazette 59:311–315.

TREASON

Article III, Section 3 of the Constitution of the United States provides:

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 today contain similar limiting definitions of treason against a state. Since national independence there has been almost no action or doctrinal development under the state provisions; the law of treason in the United States has been almost wholly the product of the national Constitution and decisions of federal courts.

Treason is the only crime defined in the Constitution, and basic to the treatment of this offense has been a mingling of values protective of government and of individuals. The crime of treason strikes at the foundations of the legal order and deals with the most serious threats to the existence of the state. Congress has reflected this judgment in prescribing penalties that may mount to death or life imprisonment. Where charges have fallen plainly within the bounds of the constitutional definition, judges have firmly applied the law. On the other hand, the limiting language of the Constitution (treason shall consist "only" in the two named forms of the offense), constitutional history, and the responses of judges bear witness to a restrictive approach in marking the outer boundaries of the crime. Thus the treason clause not only protects the security of the legal order but is functionally analogous to the Bill of Rights, protecting the civil liberties of individuals.

The restrictive dimension departs from the main directions of the statute and case law in England and in this country before 1789, which gave clear primacy to the security of government, often to serve the interests of those holding official power at a given time. Into the late eighteenth century, English political history was marked by aggressive resort to charges of treason as weapons of partisan conflict, with much vindictive prosecution and loose use of evidence. Security in the most elemental sense was at stake for the English colonies in North America under the threat of the French and Indian Wars, and in the new states torn through the Revolution by bitter divisions between those loyal to the Crown and those asserting independence. Thus the legislation of the colonies and of the new states in the Revolutionary years was studded with broad and sometimes vague definitions of subversion, in sharp contrast to the limited definition written into the national Constitution.

Records from the framing and ratification of the Constitution contain little information about the treason clause. But what is there shows sensitivity to lessons drawn from English experience of the dangers that loose resort to treason prosecutions might present to individual and political liberty. Two fears were prominent: that holders of official power would misuse the treason charge to suppress peaceful political opposition and destroy those who were out of official favor, and that under the dread charge popular fear and emotion might be stirred to produce convictions without proper evidence. Subsequently, federal judges recognized this restrictive background in decisions limiting extension of the offense. In Cramer v. United States, 325 U.S. 1, 47 (1945), the first treason case to reach the United States Supreme Court, the Court reaffirmed the restrictive construction of the scope of treason.

Elements of the offense

Three key elements are necessary for an offense to constitute treason: an obligation of allegiance to the legal order, and intent and action to violate that obligation. Treason is a breach of allegiance and of the faithful support a citizen owes to the sovereignty within which he lives. A citizen of the United States who is subject to the law of a foreign state may owe allegiance to that state at the same time he owes fealty to the United States. But this dual nationality does not relieve him of obligation to refrain from volunteering aid or comfort to the foreign nation if it is at war with the United States. Although the matter has not been presented to a court in this country, an individual present here and enjoying the nation's protection owes it his obedience while he is resident, and thus may be guilty of treason if he commits what would be the offense when done by a citizen.

Wrongful intent. Wrongful intent is a necessary element of the crime of treason, varying in character according to which of the two forms of the offense is in issue. To be guilty of levying war against the United States, the individual must intend to use organized force to overthrow the government. Under older, broad doctrines of treason in English law, intent by group force to prevent or overcome enforcement of a particular statute or other lawful order or to obtain any particular group benefit contrary to law was treason. A similar tendency was shown in two early American instances involving violent group resistance: the first, to a federal excise on whiskey (the Whiskey Rebellion of 1794), and the second, to a property excise (Fries's Rebellion of 1799); in both, federal courts found treason. However, the later interpretation is that no intent short of intent to overthrow the government suffices to constitute the offense. After the Homestead Riot of 1892 several labor leaders were indicted for levying war against the Commonwealth of Pennsylvania. But the indictments were later quietly dropped, and use of the treason charge met with prompt and unanimous criticism from conservative jurists. Violent group actions short of challenge to the existence of the government are now treated as riot or unlawful assembly.

Adhering to an enemy requires intent to render the enemy tangible support ("aid and comfort"). Long-established doctrine has defined enemies as only those against whom a legally declared state of war exists. However, in the twentieth century the reality of such undeclared shooting hostilities as the Korean War raises questions about the older limitation. That the accused may have acted with mixed purposes, such as to make money by selling goods to the enemy, does not rebut existence of the requisite intent for treason, if one of his purposes was in fact to render performance useful to the enemy. In many crimes the law holds an individual responsible as intending the foreseeable consequences of his conduct, even though he pleads that he did not mean to bring about the particular outcome for which he is charged. In treason cases, however, the prosecution must prove that the accused had a specific intent to levy war or aid enemies. This requirement does not necessitate proof by explicit statement or direct admission of guilty purpose; the prosecution may prove the guilty intent by strong inference from the context of the accused's behavior.

Overt act. The commission of some overt act to effect a treasonable purpose is a distinct element of the crime that the government must prove in addition to proving wrongful intent. The most striking, restrictive feature of the Constitution's definition of treason was the omission of any analogue of that branch of old English law that punished one who would "compass or imagine the death of our lord the King" (Treason Act, 1351, 25 Edw. 3, stat. 5, c. 2 (England)). The Crown had used this charge to suppress not only action likely to lead to the king's death, but also the mere speaking or writing of views critical of exercise of royal authority. Pursuing that line, the government obtained convictions of individuals because the "natural" consequences of their speaking or writing might endanger the state.

The calculated omission of this feature in the definition of the crime emphasized the need to show specific intent to prove treason as defined in the United States. Moreover, the omission underlines the need to prove substantial action by the accused. The function of the overt act element, said the Supreme Court in Cramer, is to ensure "that mere mental attitudes or expressions should not be treason"; the prosecution must show that the accused moved from the realm of thought, plan, or opinions into the world of action. However, the Supreme Court's treatment of the act element has clouded this requirement. In Cramer the Court seemed to say that the act must itself be evidence of the treasonable intent, a position apparently contrary to the general insistence that the intent and act elements are distinct. In Haupt v. United States, 330 U.S. 631 (1947), the Court clarified the matter somewhat: behavior proved by the required testimony of two witnesses need not indicate wrongful intent. But where the charge was aiding the enemy, if the proven overt act can be demonstrated to have given aid to the enemy only when appraised in light of evidence of other conduct of the accused, then that other conduct—as well as the particular overt act—must be proved by two witnesses. On the other hand, to prove the offense, it is not necessary to show that the accused succeeded in delivering aid to the enemy; it is enough that he took overt action to attempt delivery. More than mere planning must be shown. To establish treason by levying war, the government must prove an armed assembly; conspiracy alone does not prove the crime.

Application of the law in the United States

Since national independence, fewer than fifty cases involving the application of the law of treason as defined in the national or state constitutions have been brought to court in the United States. A tally of the thirty-eight major instances indicates that the cautious moderation sought by those who wrote the Constitution has been fulfilled in practice. Only eight cases show what critics might call broad interpretations of the offense; sixteen cases fall within explicit dimensions of the crime as set forth in the Constitution; in fourteen instances judges have taken a restrictive approach, refusing to enlarge the reach of the offense. This record suggests regard for the restrictive aspects of the constitutional history and probably indicates that by and large the country has enjoyed substantial political stability. In any event, the record shows little vindictive resort to the charge of treason, and few cases carrying politically controversial tones.

During the American Revolution most actions taken against British Loyalists were to confiscate property. Treason cases arising out of the Whiskey Rebellion, Fries's Rebellion, the Burr conspiracy, Jefferson's Embargo Act, and resistance to enforcement of the Fugitive Slave Law grew out of differences over domestic political issues. Decisions in these cases were rendered in 1795, 1800, 1807, 1808, and 1851, respectively, but were of limited practical impact. Treason prosecutions by state authorities incident to the Dorr Rebellion in Rhode Island (1842) and John Brown's raid (1859) were exceptional because of their broad political repercussions. Because of the scale of the Civil War there was no resort to prosecution for treason, although clearly supporters of the seceded states levied war against the United States. Some cases had tones of domestic ideological conflict over the country's entry into World War I. In United States v. Werner, 247 F. 708, 710–711 (E.D. Pa. 1918), the defendant was indicted for treason by giving aid to the enemy through publication of newspaper stories unfavorable to the cause of the United States. The trial court ruled for the government on the demurrer. On appeal, the Supreme Court disposed of the case on other grounds, but its opinion made clear that the prosecution carried a strong ideological tone (Schaefer v. United States, 251 U.S. 466 (1920)). But this cast was notably absent from treason prosecutions incident to World War II.

In the practice of Congress and in decisions of the courts, the constitutional definition of treason has never barred creation of other statutory offenses involving subversion of the legal order. Thus, United States v. Rosenberg, 195 F. 2d 583 (2d Cir. 1952) held that the defendants were validly convicted of conspiracy to violate the federal Espionage Act, 18 U.S.C. § 794 (1976) by communicating protected information to the USSR. However, established doctrine forbids Congress to enlarge beyond the constitutional definition the kinds of conduct that may be punished as treason, and assures the protection of the two-witness requirement where the charged conduct amounts to levy of war or adherence to enemies. Nonetheless, legislators might seek to punish it under another name. Loose use of the epithet treason amid the Cold War emotions of the 1950s showed that there was still potential power in the dread cry as a weapon of partisan or ideological combat. But the limits set by the constitutional definition have curbed resort to treason prosecutions to suppress or harass peaceful, legitimate political competition.

James Willard

Hurst Dan M. Kahan

See also Conspiracy; Federal Bureau of Investigation: History; Federal Criminal Jurisdiction; Sedition and Domestic Terrorism.

BIBLIOGRAPHY

Abrams, Stuart E. "Threats to the President and the Constitutionality of Constructive Treason." Columbia Journal of Law and Social Problems 12, no. 3 (1976): 351–392.

Chapin, Bradley. The American Law of Treason: Revolutionary and Early National Origins. Seattle: University of Washington Press, 1964.

Hill, L. M. "The Two-Witness Rule in English Treason Trials: Some Comments on the Emergence of Procedural Law." American Journal of Legal History 12 (1968): 95–111.

Hurst, James Willard. The Law of Treason in the United States: Collected Essays. Westport, Conn.: Greenwood Press, 1971.

Rehnquist, William H. All the Laws but One: Civil Liberties in Wartime. New York: Alfred A. Knopf, 1998.

——. "Civil Liberty and the Civil War: The Indianapolis Treason Trials." Indiana Law Journal 72 (1997): 927–937.

Simon, Walter G. "The Evolution of Treason." Tulane Law Review 35, no. 4 (1961): 667–704.

Stillman, Arthur M., and Arner, Frederick R. Federal Case Law concerning the Security of the United States. 83d Cong., 2d sess. Printed for use of the Special Subcommittee on Security Affairs. Washington, D.C.: Government Printing Office, 1954.

Wiener, Frederick Bernays. "Uses and Abuses of Legal History: A Practitioner's View." Law Society's Gazette 59, no. 6 (1962): 311–315.

TREASON

TREASON. Traditionally, treason was betrayal of the state, which, in most countries meant the monarch. A person who commits treason is a traitor. However, the framers of the U.S. Constitution chose to adopt a restricted definition of treason, making it the only term defined in the body of the Constitution. James Wilson was the principal author of the provision:

Art. III Sec. 3: 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.

Their reason for defining treason was the common English practice of charging political opponents with a capital offense, often on weak evidence, under the doctrine of "constructive treason." A classic case was the trial of Algernon Sidney, beheaded in 1683 for plotting against the king. The case against him was based largely on passages from his treatise, Discourses Concerning Government, which was not even published until after his death, in 1698. The term treason was familiar in the common law before it was used in the Statute of 25 Edward III (1350), from which the Constitution derives its language concerning the levying of war and adhering to enemies, giving them aid and comfort. However, the Constitution's treason clause contains no provision analogous to that by which the Statute of Edward III penalized the compassing (intending) of the king's death, since in a republic there is no monarch and the people are sovereign. Charges of treason for compassing the king's death had been the main instrument used in England for the most drastic, "lawful" suppression of political opposition or the expression of ideas or beliefs distasteful to those in power.

The Statute of 7 William III (1694) introduced the requirement of two witnesses to the same or different overt acts of the same treason or misprision (concealment) of treason, made several exceptions to what could be considered treason, and protected the right of the accused to have copies of the indictment and proceedings against him, to have counsel, and to compel witnesses—privileges not previously enjoyed by those accused of common law crimes. This statute served as a model for colonial treason statutes.

The first major cases under the U.S. Constitution arose from an 1807 conspiracy led by Aaron Burr, who had served as vice president under Thomas Jefferson in 1801–1805. The conspirators planned to seize parts of Mexico or the newly acquired Louisiana Territory. Burr and two confederates, Bollman and Swartwout, were charged with treason.

Chief Justice John Marshall opened the door for making actions other than treason a crime in Ex parte Bollman when he held that the clause does not 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. But he also stated, "However flagitious [villainous] may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that…it has been determined that the actual enlistment of men to serve against the government does not amount to levying of war." On the basis of these considerations and because no part of the crime charged had been committed in the District of Columbia, the Court held that Bollman and Swartwout could not be tried in the District and ordered their discharge. Marshall continued by saying, "the crime of treason should not be extended by construction to doubtful cases."

Burr was acquitted 1 September 1807, after an opinion rendered by Chief Justice Marshall in U.S. v. Burr that further defined the requirements for proving treason. The Court held that Burr, who had not been present at the assemblage of men on Blennerhassett Island, could be convicted of advising or procuring a levying of war only upon the testimony of two witnesses to his having procured the assemblage, but the operation was covert and such testimony was unobtainable. Marshall's opinion made it extremely difficult to convict someone of levying war against the United States unless the person participated in actual hostilities.

The Burr and Bollman cases prompted the introduction in 1808 of a Senate bill to further define the crime of treason. The debate on that bill, which was rejected, provides insight into the original understanding of the treason clause: its purpose was to guarantee nonviolent political controversy against suppression under the charge of treason or any other criminal charge based on its supposed subversive character, and there was no constitutional authority to evade the restriction by creating new crimes under other names.

Before 1947, most cases that were successfully prosecuted were not federal trials but rather state trials for treason, notably the trials of Thomas Wilson Dorr (1844) and John Brown (1859) on charges of levying war against the states of Rhode Island and Virginia, respectively.

After the Civil War, some wanted to try Southern secessionists for treason, and former the Confederate president Jefferson Davis was charged with treason in U.S. v. Jefferson Davis. The constitutional requirement in Art. III Sec. 2 Cl. 3 that an offender be tried in the state and district where the offense was committed would have meant trying Davis in Virginia, where a conviction was unlikely, so the case was dismissed. Although the United States government regarded the activities of the Confederate States as a levying of war, the president's Amnesty Proclamation of 25 December 1868 pardoned all those who had participated on the Southern side.

Since the Bollman case, the few treason cases that have reached the Supreme Court have been outgrowths of World War II and charged adherence to enemies of the United States and the giving of aid and comfort. In the first of these, Cramer v. United States, the issue was whether the "overt act" had to be "openly manifest treason" or whether it was enough, when supported by the proper evidence, that it showed the required treasonable intention. The Court in a five to four opinion by Justice Jackson took the former view, holding that "the two witness principle" barred "imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness," even though the single witness in question was the accused himself. "Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses."

The Supreme Court first sustained a conviction of treason in 1947 in Haupt v. United States. Here it was held that although the overt acts relied upon to support the charge of treason (defendant's harboring and sheltering in his home his son who was an enemy spy and saboteur, assisting him in purchasing an automobile and in obtaining employment in a defense plant) were all acts that a father would naturally perform for a son, this fact did not necessarily relieve them of the treasonable purpose of giving aid and comfort to the enemy.

In Kawakita v. United States, the petitioner was a native-born citizen of the United States and also a national of Japan by reason of Japanese parentage and law. While a minor, he took the oath of allegiance to the United States, went to Japan for a visit on an American passport, and was prevented from returning to this country by the outbreak of war. During World War II he reached his majority in Japan, changed his registration from American to Japanese, showed sympathy with Japan and hostility to the United States, served as a civilian employee of a private corporation producing war materials for Japan, and brutally abused American prisoners of war who were forced to work there. After Japan's surrender, he registered as an American citizen, swore that he was an American citizen and had not done various acts amounting to expatriation, and returned to this country on an American passport. The question whether, on this record, Kawakita had intended to renounce American citizenship was peculiarly one for the jury, said the Court in sustaining conviction, and the jury's verdict that he had not so intended was based on sufficient evidence. An American citizen, it continued, owes allegiance to the United States wherever he may reside, and dual nationality does not alter the situation. This case is notable for extending U.S. criminal jurisdiction to the actions of U.S. civilian citizens abroad, which would have originally been considered unconstitutional.

World War II was followed by the Cold War, which resulted in political prosecutions of several persons for treason and other charges on dubious evidence. The trials of the Axis broadcasters—Douglas Chandler, Robert H. Best, Mildred Gellars as "Axis Sally," Iva Ikuko Toguri d'Aquino as "Tokyo Rose" (later pardoned by President Ford when it was revealed she had been a double agent for the allies)—and the indictment and mental commitment of Ezra Pound, muddied the jurisprudence of the treason clause. Their actions provided no significant aid or comfort to an enemy and were not committed within the territorial jurisdiction of the United States. In United States v. Rosenberg, the Court held 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 was applicable. However, no constitutional authority for the Espionage Act itself was proven.

BIBLIOGRAPHY

Chapin, Bradley. The American Law of Treason: Revolutionary and Early National Origins. Seattle: University of Washing ton Press, 1964.

Elliot, Jonathan. Debates in the Several State Conventions on Adoption of the Federal Constitution. Philadelphia, 1836, p. 469 (James Wilson).

Hurst, James Willard. The Law of Treason in the United States: Collected Essays. Westport, Conn.: Greenwood Publishing, 1971.

Kutler, Stanley I. The American Inquisition: Justice and Injustice in the Cold War. New York: Hill and Wang, 1982.

JonRoland

See alsoArnold's Treason ; Civil Rights and Liberties ; Davis, Imprisonment and Trial of ; Rosenberg Case .

Treason Trials

Ex parte Bollman, 4 Cr. (8 U.S.) 75 (1807).

United States v. Burr, 4 Cr. (8 U.S.) 469 (1807).

Annals of Congress, Tenth Congress, First Session, Senate, Debate on Treason and Other Crimes, 1808.

Wharton's State Trials of the United States (Philadelphia, 1849), and Lawson's American State Trials (17 volumes, St. Louis, 1914–1926), trials of Thomas Wilson Dorr (1844) and of John Brown (1859).

Cramer v. United States, 325 U.S. 1 (1945).

Haupt v. United States, 330 U.S. 631 (1947).

Kawakita v. United States, 343 U.S. 717 (1952).

United States v. Rosenberg, 195 F.2d 583 (2d. Cir.), cert den., 344 U.S. 889 (1952).

Treason —betraying the nation‐state that the American military was created to defend—is among the most odious of crimes. Yet American history suggests how fine the line can be between patriot and traitor.

The founding fathers had to become traitors to their king in order to create the United States. The Declaration of Independence articulated the conditions—tyranny—under which a people might legitimately renounce their allegiance to one sovereign authority and transfer it to another.

Efforts to punish disloyalty to the new nation predated its independence. On 24 June, 1776, the Continental Congress adopted a motion by its Committee on Spies recommending that individual colonies punish those “who shall levy war against any of the said colonies … or be adherent to the King of Great Britain….” Thus authorized, the revolutionary factions in the individual colonies punished as traitors avowed Tories, along with those who uttered favorable opinions about the king, had contact with the British, or entered British‐controlled territories. The emphasis was on protecting the new nation, not the rights or intent of the accused. Punishment most often involved confiscation of property and exile. The revolutionaries justified such severity by the presumption that, as the Virginia treason statute suggested, “all countries have a Right to the personal services” of their inhabitants.

Treason was given an enduring symbol in 1780 when Gen. Benedict Arnold, disillusioned with the revolutionary cause, unsuccessfully schemed to surrender the army garrison at West Point to the British, fleeing to the British after his plot was discovered. Arnold's name remains synonymous with betrayal in American history.

The excesses of the Revolution prompted the framers of the Constitution to restrict the definition of treason to “levying war against” the United States and providing “aid and comfort” to its enemies, and to require the testimony of two witnesses “to the same overt act” and the establishment of treasonous intent for conviction. They limited punishment to the person charged, and abjured the attainder of the traitor's relatives or heirs. Thus the framers hoped to balance the security of the state with the protection of private property and individual rights and to prevent the charge of treason from becoming an instrument of political repression.

The first application of the Constitution's treason provisions occurred in 1794 with the Whiskey Rebellion. Federal troops led by George Washington quashed this challenge to central authority, and a federal circuit court condemned to death two men—whom Washington later pardoned—for treason.

A major landmark in the evolution of treason law occurred in the 1807 trial of Aaron Burr, who stood accused of attempting to establish an independent trans‐Appalachian empire. Although circumstantial evidence pointed toward the defendant's guilt, the government's inability to prove that an overt act of treason had occurred resulted in Burr's acquittal. In a victory for a narrow interpretation of the law of treason, Chief Justice John Marshall ruled that “the difficulty of proving a fact will not justify conviction without proof.”

During the Mexican War (1846–48), religious allegiance took precedence over national loyalty for several hundred Irish immigrant U.S. troops who deserted to the Mexican Army when the Mexican government appealed to them to defend Catholicism and promised them land. The “San Patricio Brigade” put up fierce resistance against U.S. units at the Battle of Churubusco before surrendering to Gen. Winfield Scott, who executed fifty of them for treason.

In 1859, John Brown and his followers, in the name of God and slave liberation, seized the Federal arsenal at Harpers Ferry, Virginia, as part of a plan to establish a free guerrilla state. Although Brown had attacked U.S. property, Governor Henry Wise had the conspirators tried for treason against Virginia. This assertion of state jurisdiction reflected the assumptions that soon produced the secession of the Southern states in 1861, the most significant act of treason in American history. Suppression of the rebellion was based on the assumption that the Union was permanent and that secession from it could never be justified.

Although the Constitution defines treason strictly, Congress has expanded the definition of treasonous behavior by legislation such as the Alien and Sedition Acts of 1798 and and the Espionage and Sedition Acts of World War I (1917; 1918), which punished political expression deemed hazardous to the state. Both sets of legislation proved controversial. The acts of 1798 provoked the violent opposition of the emerging Jeffersonian Republican Party and facilitated the election of Thomas Jefferson as president in 1801. The acts of 1917–18 legitimated a government crackdown on dissent of all kinds and foreshadowed the crisis atmosphere of the Red Scare of the 1920s.

The Cold War saw the charge of treason used to build political careers and silence dissent. Congressman Richard M. Nixon first came to prominence in 1948 investigating a State Department employee, Alger Hiss, for his alleged activities as a Communist Party contact in the 1930s. In 1952, Senator Joseph McCarthy, alleging “twenty years of treason,” launched his campaign to eliminate alleged traitors in the federal government. McCarthyism made dissent tantamount to treason. Julius and Ethel Rosenberg, who were convicted and executed in 1953 for passing secrets to the Soviets, were condemned by many for being traitors.

Jonathan Pollard, a Defense Department analyst convicted in 1985 of passing vital secrets to Israel, remains incarcerated in spite of continued pressure from the Israeli government for his release. The quantity and importance of the information Pollard leaked constitutes one of the most significant security breaches in U.S. history.

In recent years, treason has tended to be committed for monetary gain rather than ideological commitment. Typical of this trend are Central Intelligence Agency (CIA) officials Aldrich Ames and Harold James Nicholson. Ames, before being discovered in 1994, passed extensive information on U.S. intelligence operatives abroad to Soviet and Russian agents. Nicholson, who confessed in March 1997 to passing secrets to the Russians, is the highest ranking CIA employee to be caught spying.
[See also Patriotism.]

Bibliography

Nathaniel Weyl , Treason: The Story of Disloyalty and Betrayal in American History, 1950.
Bradley Chapin , The American Law of Treason: Revolutionary and Early National Origins, 1964.
James Willard Hurst , The Law of Treason in the United States: Collected Essays, 1971.

William Earl Weeks

TREASON

The betrayal of one's own country by waging war against it or by consciously or purposely acting to aid its enemies.

The Treason Clause traces its roots back to an English statute enacted during the reign of Edward III (1327–1377). This statute prohibited levying war against the king, adhering to his enemies, or contemplating his death. Although this law defined treason to include disloyal and subversive thoughts, it effectively circumscribed the crime as it existed under the common law. During the thirteenth century, the crime of treason encompassed virtually every act contrary to the king's will and became a political tool of the Crown. Building on the tradition begun by Edward III, the Founding Fathers carefully delineated the crime of treason in Article III of the U.S. Constitution, narrowly defining its elements and setting forth stringent evidentiary requirements.

Under Article III, Section 3, of the Constitution, any person who levies war against the United States or adheres to its enemies by giving them aid and comfort has committed treason within the meaning of the Constitution. The term aid and comfort refers to any act that manifests a betrayal of allegiance to the United States, such as furnishing enemies with arms, troops, transportation, shelter, or classified information. If a subversive act has any tendency to weaken the power of the United States to attack or resist its enemies, aid and comfort has been given.

The Treason Clause applies only to disloyal acts committed during times of war. Acts of dis-loyalty during peacetime are not considered treasonous under the Constitution. Nor do acts of espionage committed on behalf of an ally constitute treason. For example, julius and ethel rosenberg were convicted of espionage, in 1951, for helping the Soviet Union steal atomic secrets from the United States during world war ii. The Rosenbergs were not tried for treason because the United States and the Soviet Union were allies during World War II.

Under Article III a person can levy war against the United States without the use of arms, weapons, or military equipment. Persons who play only a peripheral role in a conspiracy to levy war are still considered traitors under the Constitution if an armed rebellion against the United States results. After the u.s. civil war, for example, all Confederate soldiers were vulnerable to charges of treason, regardless of their role in the secession or insurrection of the Southern states. No treason charges were filed against these soldiers, however, because President andrew johnson issued a universal amnesty.

The crime of treason requires a traitorous intent. If a person unwittingly or unintentionally gives aid and comfort to an enemy of the United States during wartime, treason has not occurred. Similarly, a person who pursues a course of action that is intended to benefit the United States but mistakenly helps an enemy is not guilty of treason. Inadvertent disloyalty is never punishable as treason, no matter how much damage the United States suffers.

As in any other criminal trial in the United States, a defendant charged with treason is presumed innocent until proved guilty beyond a reasonable doubt. Treason may be proved by a voluntary confession in open court or by evidence that the defendant committed an overt act of treason. Each overt act must be witnessed by at least two people, or a conviction for treason will not stand. By requiring this type of direct evidence, the Constitution minimizes the danger of convicting an innocent person and forestalls the possibility of partisan witch-hunts waged by a single adversary.

Unexpressed seditious thoughts do not constitute treason, even if those thoughts contemplate a bloody revolution or coup. Nor does the public expression of subversive opinions, including vehement criticism of the government and its policies, constitute treason. The first amendment to the U.S. Constitution guarantees the right of all Americans to advocate the violent overthrow of their government unless such advocacy is directed toward inciting imminent lawless action and is likely to produce it (Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]). On the other hand, the U.S. Supreme Court ruled that the distribution of leaflets protesting the draft during world war i was not constitutionally protected speech (schenck v. united states, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]).

Because treason involves the betrayal of allegiance to the United States, a person need not be a U.S. citizen to commit treason under the Constitution. Persons who owe temporary allegiance to the United States can commit treason. aliens who are domiciliaries of the United States, for example, can commit traitorous acts during the period of their domicile. A subversive act does not need to occur on U.S. soil to be punishable as treason. For example, Mildred Gillars, a U.S. citizen who became known as Axis Sally, was convicted of treason for broadcasting demoralizing propaganda to Allied forces in Europe from a Nazi radio station in Germany during World War II.

Treason is punishable by death. If a death sentence is not imposed, defendants face a minimum penalty of five years in prison and a $10,000 fine (18 U.S.C.A. § 2381). A person who is convicted of treason may not hold federal office at any time thereafter.

The English common law required defendants to forfeit all of their property, real and personal, upon conviction for treason. In some cases, the British Crown confiscated the property of immediate family members as well. The common law also precluded convicted traitors from bequeathing their property through a will. Relatives were presumed to be tainted by the blood of the traitor and were not permitted to inherit from him. Article III of the U.S. Constitution outlaws such "corruption of the blood" and limits the penalty of forfeiture to "the life of the person attainted." Under this provision relatives cannot be made to forfeit their property or inheritance for crimes committed by traitorous family members.

further readings

Carlton, Eric. 1998. Treason: Meanings and Motives. Brookfield, Vt.: Ashgate.

Holzer, Henry Mark. 2002. "Why Not Call It Treason? From Korea to Afghanistan." Southern University Law Review 29 (spring).

Kmiec, Douglas W. 2002. "Try Lindh for Treason." National Review (January 21).

Spectar, J.M. 2003. "To Ban or Not to Ban an American Taliban? Revocation of Citizenship and Statelessness in a Statecentric System." California Western Law Review 39 (spring).