Treason

Since national independence, fewer than fifty cases involving the application of the law of treason as defined in the national or state constitutions have been brought to court in the United States. A tally of the thirty-eight major instances indicates that the cautious moderation sought by those who wrote the Constitution has been fulfilled in practice. Only eight cases show what critics might call broad interpretations of the offense; sixteen cases fall within explicit dimensions of the crime as set forth in the Constitution; in fourteen instances judges have taken a restrictive approach, refusing to enlarge the reach of the offense. This record suggests regard for the restrictive aspects of the constitutional history and probably indicates that by and large the country has enjoyed substantial political stability. In any event, the record shows little vindictive resort to the charge of treason, and few cases carrying politically controversial tones.

During the American Revolution most actions taken against British Loyalists were to confiscate property. Treason cases arising out of the Whiskey Rebellion, Fries's Rebellion, the Burr conspiracy, Jefferson's Embargo Act, and resistance to enforcement of the Fugitive Slave Law grew out of differences over domestic political issues. Decisions in these cases were rendered in 1795, 1800, 1807, 1808, and 1851, respectively, but were of limited practical impact. Treason prosecutions by state authorities incident to the Dorr Rebellion in Rhode Island (1842) and John Brown's raid (1859) were exceptional because of their broad political repercussions. Because of the scale of the Civil War there was no resort to prosecution for treason, although clearly supporters of the seceded states levied war against the United States. Some cases had tones of domestic ideological conflict over the country's entry into World War I. In United States v. Werner, 247 F. 708, 710–711 (E.D. Pa. 1918), the defendant was indicted for treason by giving aid to the enemy through publication of newspaper stories unfavorable to the cause of the United States. The trial court ruled for the government on the demurrer. On appeal, the Supreme Court disposed of the case on other grounds, but its opinion made clear that the prosecution carried a strong ideological tone (Schaefer v. United States, 251 U.S. 466 (1920)). But this cast was notably absent from treason prosecutions incident to World War II.

In the practice of Congress and in decisions of the courts, the constitutional definition of treason has never barred creation of other statutory offenses involving subversion of the legal order. Thus, United States v. Rosenberg, 195 F. 2d 583 (2d Cir. 1952) held that the defendants were validly convicted of conspiracy to violate the federal Espionage Act, 18 U.S.C. § 794 (1976) by communicating protected information to the USSR. However, established doctrine forbids Congress to enlarge beyond the constitutional definition the kinds of conduct that may be punished as treason, and assures the protection of the two-witness requirement where the charged conduct amounts to levy of war or adherence to enemies. Nonetheless, legislators might seek to punish it under another name. Loose use of the epithet treason amid the Cold War emotions of the 1950s showed that there was still potential power in the dread cry as a weapon of partisan or ideological combat. But the limits set by the constitutional definition have curbed resort to treason prosecutions to suppress or harass peaceful, legitimate political competition.