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Elements Of The Offense

Three key elements are necessary for an offense to constitute treason: an obligation of allegiance to the legal order, and intent and action to violate that obligation. Treason is a breach of allegiance and of the faithful support a citizen owes to the sovereignty within which he lives. A citizen of the United States who is subject to the law of a foreign state may owe allegiance to that state at the same time he owes fealty to the United States. But this dual nationality does not relieve him of obligation to refrain from volunteering aid or comfort to the foreign nation if it is at war with the United States. Although the matter has not been presented to a court in this country, an individual present here and enjoying the nation's protection owes it his obedience while he is resident, and thus may be guilty of treason if he commits what would be the offense when done by a citizen.

Wrongful intent. Wrongful intent is a necessary element of the crime of treason, varying in character according to which of the two forms of the offense is in issue. To be guilty of levying war against the United States, the individual must intend to use organized force to overthrow the government. Under older, broad doctrines of treason in English law, intent by group force to prevent or overcome enforcement of a particular statute or other lawful order or to obtain any particular group benefit contrary to law was treason. A similar tendency was shown in two early American instances involving violent group resistance: the first, to a federal excise on whiskey (the Whiskey Rebellion of 1794), and the second, to a property excise (Fries's Rebellion of 1799); in both, federal courts found treason. However, the later interpretation is that no intent short of intent to overthrow the government suffices to constitute the offense. After the Homestead Riot of 1892 several labor leaders were indicted for levying war against the Commonwealth of Pennsylvania. But the indictments were later quietly dropped, and use of the treason charge met with prompt and unanimous criticism from conservative jurists. Violent group actions short of challenge to the existence of the government are now treated as riot or unlawful assembly.

Adhering to an enemy requires intent to render the enemy tangible support ("aid and comfort"). Long-established doctrine has defined enemies as only those against whom a legally declared state of war exists. However, in the twentieth century the reality of such undeclared shooting hostilities as the Korean War raises questions about the older limitation. That the accused may have acted with mixed purposes, such as to make money by selling goods to the enemy, does not rebut existence of the requisite intent for treason, if one of his purposes was in fact to render performance useful to the enemy. In many crimes the law holds an individual responsible as intending the foreseeable consequences of his conduct, even though he pleads that he did not mean to bring about the particular outcome for which he is charged. In treason cases, however, the prosecution must prove that the accused had a specific intent to levy war or aid enemies. This requirement does not necessitate proof by explicit statement or direct admission of guilty purpose; the prosecution may prove the guilty intent by strong inference from the context of the accused's behavior.

Overt act. The commission of some overt act to effect a treasonable purpose is a distinct element of the crime that the government must prove in addition to proving wrongful intent. The most striking, restrictive feature of the Constitution's definition of treason was the omission of any analogue of that branch of old English law that punished one who would "compass or imagine the death of our lord the King" (Treason Act, 1351, 25 Edw. 3, stat. 5, c. 2 (England)). The Crown had used this charge to suppress not only action likely to lead to the king's death, but also the mere speaking or writing of views critical of exercise of royal authority. Pursuing that line, the government obtained convictions of individuals because the "natural" consequences of their speaking or writing might endanger the state.

The calculated omission of this feature in the definition of the crime emphasized the need to show specific intent to prove treason as defined in the United States. Moreover, the omission underlines the need to prove substantial action by the accused. The function of the overt act element, said the Supreme Court in Cramer, is to ensure "that mere mental attitudes or expressions should not be treason"; the prosecution must show that the accused moved from the realm of thought, plan, or opinions into the world of action. However, the Supreme Court's treatment of the act element has clouded this requirement. In Cramer the Court seemed to say that the act must itself be evidence of the treasonable intent, a position apparently contrary to the general insistence that the intent and act elements are distinct. In Haupt v. United States, 330 U.S. 631 (1947), the Court clarified the matter somewhat: behavior proved by the required testimony of two witnesses need not indicate wrongful intent. But where the charge was aiding the enemy, if the proven overt act can be demonstrated to have given aid to the enemy only when appraised in light of evidence of other conduct of the accused, then that other conduct—as well as the particular overt act—must be proved by two witnesses. On the other hand, to prove the offense, it is not necessary to show that the accused succeeded in delivering aid to the enemy; it is enough that he took overt action to attempt delivery. More than mere planning must be shown. To establish treason by levying war, the government must prove an armed assembly; conspiracy alone does not prove the crime.

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Law Library - American Law and Legal InformationCrime and Criminal LawTreason - Elements Of The Offense, Application Of The Law In The United States, Bibliography