ArtIII.S3.C1.1.1 Treason Clause: Historical Background

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

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

Footnotes

  1.  Jump to essay-12 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.  Jump to essay-22 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, at 290 (James Madison) (Jacob E. Cooke ed., 1961); id. No. 84, at 576–77 (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.
  3.  Jump to essay-325 Edward III, Stat. 5, ch. 2, See J. Hurst, supra at ch 2.
  4.  Jump to essay-4Id. at 15, 31–37, 41–49, 51–55.
  5.  Jump to essay-5Id. [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.
  6.  Jump to essay-6The 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).
  7.  Jump to essay-7By the requirement of two witnesses to the same overt act or a confession in open court.
  8.  Jump to essay-8Cl. 2, infra, Corruption of the Blood and Forfeiture.