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ArtIII.S3.C1.1 Historical Background on Treason

Article III, Section 3, Clause 1:

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 Treason Clause is a product of the Framer’s awareness of the “numerous and dangerous excrescences” which had distorted the English law of treason. The Clause was therefore intended to put “extend[ing] the crime and punishment of treason” beyond Congress’s power.1 Debate in the Constitutional Convention, remarks in the ratifying conventions, and contemporaneous public comments make clear that the Framers contemplated a restrictive concept of the crime of treason that would prevent the politically powerful from escalating ordinary partisan disputes into capital charges of treason, as so often had happened in England.2

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 Congress’s power to define treason,6 the Clause also limits Congress’s ability to make proof of the offense of treason easy to establish7 and to define the punishment for treason.8

2 Debates in the Several State Conventions on Adoption of the Constitution 469 (Jonathan Elliott ed., 1836) (James Wilson). James Wilson apparently drafted the clause as a member of the Committee of Detail and had some firsthand knowledge of how treason charges could be abused. See Cramer v. United States, 325 U.S. 1, 23 & note 32 (1944); J. Hurst, The Law of Treason in the United States: Selected Essays 90–91, 129–136 (1971). back
2 Records of the Federal Convention of 1787, at 345–50 (Max Farrand ed., 1911) [hereinafter Farrand’s Records; 3 Farrand’s Records, at 102–03; id. at 447, 451, 466; 3 Farrand’s Records, at 209, 219, 220 ; The Federalist No. 43 (James Madison); id. No. 84 (Alexander Hamilton); The Works of James Wilson 663–69 (R. McCloskey ed. 1967). The matter is comprehensively discussed in J. Hurst supra note 1, at chs. 3, 4. back
25 Edward III, Stat. 5, ch. 2. See J. Hurst, supra note 1, at ch. 2. back
J. Hurst supra note 1, at 15, 31–37, 41–49, 51–55. back
Id.; see also id. at 152–53 ( “[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.” ). back
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 Fd. 11, 12–13 (6th Cir. 1920), cert. denied, 253 U.S. 494 (1920). back
By the requirement of two witnesses to the same overt act or a Confession in open Court. back
ArtIII.S3.C2.1 Punishment of Treason Clause back