Treason

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.

Jon Roland

See also Arnold'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).