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.”1471 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.1472
Thus, the Framers adopted two of the three formulations and the phraseology of the English Statute of Treason enacted in 1350,1473 but they conspicuously omitted the phrase defining as treason the “compass[ing] or imagin[ing] the death of our lord the King,”1474 under which most of the English law of “constructive treason” had been developed.1475 Beyond limiting the power of Congress to define treason,1476 the clause also prescribes limitations upon Congress’s ability to make proof of the offense easy to establish1477 and its ability to define punishment.1478
Early judicial interpretation of the meaning of treason in terms of levying war was conditioned by the partisan struggles of the early nineteenth century, which involved the treason trials of Aaron Burr and his associates. In Ex parte Bollman,1479 which involved two of Burr’s confederates, Chief Justice Marshall, speaking for himself and three other Justices, confined the meaning of levying war to the actual waging of war. “However flagitious 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 war.” 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. “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. But there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war.”1480
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 that “the crime of treason should not be extended by construction to doubtful cases” and concluded that no conspiracy for overturning the Government and “no enlisting of men to effect it, would be an actual levying of war.”1481
The Burr Trial.
Not long afterward, the Chief Justice went to Richmond to preside over the trial of Aaron Burr. His ruling1482 denying a motion to introduce certain collateral evidence bearing on Burr’s activities is significant both for rendering the latter’s acquittal inevitable and for the qualifications and exceptions made to the Bollman decision. In brief, this ruling held that Burr, who had not been present at the assemblage on Blennerhassett’s 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. This operation having been covert, such testimony was naturally unobtainable. The net effect of Marshall’s pronouncements was to make it extremely difficult to convict one of levying war against the United States short of the conduct of or personal participation in actual hostilities.1483
Aid and Comfort to the Enemy
The Cramer Case.
Since Bollman, the few treason cases that have reached the Supreme Court were outgrowths of World War II and have charged adherence to enemies of the United States and the giving of aid and comfort. In the first of these, Cramer v. United States,1484 the issue was whether the “overt act” had to be “openly manifest treason” or if it was enough if, when supported by the proper evidence, it showed the required treasonable intention.1485 The Court, in a five-to-four opinion by Justice Jackson, in effect took the former view holding that “the two-witness principle” interdicted “imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness,”1486 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,”1487 Justice Jackson asserted. Justice Douglas in a dissent, in which Chief Justice Stone and Justices Black and Reed concurred, contended that Cramer’s treasonable intention was sufficiently shown by overt acts as attested to by two witnesses each, plus statements made by Cramer on the witness stand.
The Haupt Case.
The Supreme Court sustained a conviction of treason, for the first time in its history, in 1947 in Haupt v. United States.1488 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 which 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. Speaking for the Court, Justice Jackson said: “No matter whether young Haupt’s mission was benign or traitorous, known or unknown to the defendant, these acts were aid and comfort to him. In the light of this mission and his instructions, they were more than casually useful; they were aids in steps essential to his design for treason. If proof be added that the defendant knew of his son’s instruction, preparation and plans, the purpose to aid and comfort the enemy becomes clear.”1489
The Court held that conversation and occurrences long prior to the indictment were admissible evidence on the question of defendant’s intent. And more important, it held that the constitutional requirement of two witnesses to the same overt act or confession in open court does not operate to exclude confessions or admissions made out of court, where a legal basis for the conviction has been laid by the testimony of two witnesses of which such confessions or admissions are merely corroborative. This relaxation of restrictions surrounding the definition of treason evoked obvious satisfaction from Justice Douglas, who saw in Haupt a vindication of his position in Cramer. His concurring opinion contains what may be called a restatement of the law of treason and merits quotation at length:
“As the Cramer case makes plain, the overt act and the intent with which it is done are separate and distinct elements of the crime. Intent need not be proved by two witnesses but may be inferred from all the circumstances surrounding the overt act. But if two witnesses are not required to prove treasonable intent, two witnesses need not be required to show the treasonable character of the overt act. For proof of treasonable intent in the doing of the overt act necessarily involves proof that the accused committed the overt act with the knowledge or understanding of its treasonable character.”
“The requirement of an overt act is to make certain a treasonable project has moved from the realm of thought into the realm of action. That requirement is undeniably met in the present case, as it was in the case of Cramer.”
“The Cramer case departed from those rules when it held that ‘The two-witness principle is to interdict imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness.’ 325 U.S. p. 35. The present decision is truer to the constitutional definition of treason when it forsakes that test and holds that an act, quite innocent on its face, does not need two witnesses to be transformed into a incriminating one.”1490
The Kawakita Case.
Kawakita v. United States1491 was decided on June 2, 1952. The facts are sufficiently stated in the following headnote: “At petitioner’s trial for treason, it appeared that originally he 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 by the outbreak of war from returning to this country. During the war, 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, said the Court, in sustaining conviction, was peculiarly one for the jury and their 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.1492
Doubtful State of the Law of Treason Today
The vacillation of Chief Justice Marshall between the Boll-man1493 and Burr1494 cases and the vacillation of the Court in the Cramer1495 and Haupt1496 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,1497 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.”1498
- 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).
- 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.
- 25 Edward III, Stat. 5, ch. 2, See J. Hurst, supra at ch 2.
- Id. at 15, 31–37, 41–49, 51–55.
- 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.
- 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).
- By the requirement of two witnesses to the same overt act or a confession in open court.
- Cl. 2, infra, “Corruption of the Blood and Forfeiture”.
- 8 U.S. (4 Cr.) 75 (1807).
- 8 U.S. at 126.
- 8 U.S. at 127.
- United States v. Burr, 8 U.S. (4 Cr.) 469, Appx. (1807).
- There have been lower court cases in which convictions were obtained. As a result of the Whiskey Rebellion, convictions of treason were obtained on the basis of the ruling that forcible resistance to the enforcement of the revenue laws was a constructive levying of war. United States v. Vigol, 29 Fed. Cas. 376 (No. 16621) (C.C.D. Pa. 1795); United States v. Mitchell, 26 Fed. Cas. 1277 (No. 15788) (C.C.D. Pa. 1795). After conviction, the defendants were pardoned. See also for the same ruling in a different situation the Case of Fries, 9 Fed. Cas. 826, 924 (Nos. 5126, 5127) (C.C.D. Pa. 1799, 1800). The defendant was again pardoned after conviction. About a half century later participation in forcible resistance to the Fugitive Slave Law was held not to be a constructive levying of war. United States v. Hanway, 26 Fed. Cas. 105 (No. 15299) (C.C.E.D. Pa. 1851). Although the United States Government regarded the activities of the Confederate States as a levying of war, the President by Amnesty Proclamation of December 25, 1868, pardoned all those who had participated on the southern side in the Civil War. In applying the Captured and Abandoned Property Act of 1863 (12 Stat. 820) in a civil proceeding, the Court declared that the foundation of the Confederacy was treason against the United States. Sprott v. United States, 87 U.S. (20 Wall.) 459 (1875). See also Hanauer v. Doane, 79 U.S. (12 Wall.) 342 (1871); Thorington v. Smith, 75 U.S. (8 Wall.) 1 (1869); Young v. United States, 97 U.S. 39 (1878). These four cases bring in the concept of adhering to the enemy and giving him aid and comfort, but these are not criminal cases and deal with attempts to recover property under the Captured and Abandoned Property Act by persons who claimed that they had given no aid or comfort to the enemy. These cases are not, therefore, an interpretation of the Constitution.
- 325 U.S. 1 (1945).
- 89 Law. Ed. 1443–1444 (Argument of Counsel).
- 325 U.S. at 35.
- 325 U.S. at 34–35. Earlier, Justice Jackson had declared that this phase of treason consists of two elements: “adherence to the enemy; and rendering him aid and comfort.” A citizen, it was said, may take actions “which do aid and comfort the enemy . . . but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.” Id. at 29. Justice Jackson states erroneously that the requirement of two witnesses to the same overt act was an original invention of the Convention of 1787. Actually it comes from the British Treason Trials Act of 1695. 7 Wm. III, c.3.
- 330 U.S. 631 (1947).
- 330 U.S. at 635–36.
- 330 U.S. at 645–46. Justice Douglas cites no cases for these propositions. Justice Murphy in a solitary dissent stated: “But the act of providing shelter was of the type that might naturally arise out of petitioner’s relationship to his son, as the Court recognizes. By its very nature, therefore, it is a non-treasonous act. That is true even when the act is viewed in light of all the surrounding circumstances. All that can be said is that the problem of whether it was motivated by treasonous or non-treasonous factors is left in doubt. It is therefore not an overt act of treason, regardless of how unlawful it might otherwise be.” Id. at 649.
- 343 U.S. 717 (1952).
- 343 U.S. at 732. For citations in the subject of dual nationality, see id. at 723 n.2. Three dissenters asserted that Kawakita’s conduct in Japan clearly showed he was consistently demonstrating his allegiance to Japan. “As a matter of law, he expatriated himself as well as that can be done.” Id. at 746.
- Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).
- United States v. Burr, 8 U.S. (4 Cr.) 469 (1807).
- Cramer v. United States, 325 U.S. 1 (1945).
- Haupt v. United States, 330 U.S. 631 (1947).
- 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.
- 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.