ArtIII.S3.C1.2 Levying War as 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.

Early judicial interpretation of the Treason Clause and the term “levying war” arose in the context of the partisan struggles of the early nineteenth century and the treason trials of Aaron Burr and his associates. In Ex parte Bollman,1 which involved two of Burr’s confederates, Chief Justice John Marshall, speaking for himself and three other Justices, confined the meaning of levying war to the actual waging of war. Chief Justice Marshall distinguished the offence of conspiring to levy war and the offence of actually levying war. In his view, “[t]he first must be brought into operation by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed.” 2 This “enlistment of men to serve against the government,” according to him, “does not amount to levying war.” 3 Chief Justice Marshall was careful, however, to state that the Court did not mean that no person could be guilty of this crime who had not appeared in arms against the country. He stated: “On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” 4 But, Chief Justice Marshall emphasized, “there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war.” 5

Based on 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. Chief Justice Marshall continued by saying that “the crime of treason should not be extended by construction to doubtful cases” 6 and concluded that no conspiracy for overturning the Government and “no enlisting of men to effect it, would be an actual levying of war.” 7

8 U.S. (4 Cr.) 75 (1807). back
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