Treason - Elements Of The Offense, Application Of The Law In The United States, Bibliography
Article III, Section 3 of the Constitution of the United States provides:
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.
State constitutions today contain similar limiting definitions of treason against a state. Since national independence there has been almost no action or doctrinal development under the state provisions; the law of treason in the United States has been almost wholly the product of the national Constitution and decisions of federal courts.
Treason is the only crime defined in the Constitution, and basic to the treatment of this offense has been a mingling of values protective of government and of individuals. The crime of treason strikes at the foundations of the legal order and deals with the most serious threats to the existence of the state. Congress has reflected this judgment in prescribing penalties that may mount to death or life imprisonment. Where charges have fallen plainly within the bounds of the constitutional definition, judges have firmly applied the law. On the other hand, the limiting language of the Constitution (treason shall consist "only" in the two named forms of the offense), constitutional history, and the responses of judges bear witness to a restrictive approach in marking the outer boundaries of the crime. Thus the treason clause not only protects the security of the legal order but is functionally analogous to the Bill of Rights, protecting the civil liberties of individuals.
The restrictive dimension departs from the main directions of the statute and case law in England and in this country before 1789, which gave clear primacy to the security of government, often to serve the interests of those holding official power at a given time. Into the late eighteenth century, English political history was marked by aggressive resort to charges of treason as weapons of partisan conflict, with much vindictive prosecution and loose use of evidence. Security in the most elemental sense was at stake for the English colonies in North America under the threat of the French and Indian Wars, and in the new states torn through the Revolution by bitter divisions between those loyal to the Crown and those asserting independence. Thus the legislation of the colonies and of the new states in the Revolutionary years was studded with broad and sometimes vague definitions of subversion, in sharp contrast to the limited definition written into the national Constitution.
Records from the framing and ratification of the Constitution contain little information about the treason clause. But what is there shows sensitivity to lessons drawn from English experience of the dangers that loose resort to treason prosecutions might present to individual and political liberty. Two fears were prominent: that holders of official power would misuse the treason charge to suppress peaceful political opposition and destroy those who were out of official favor, and that under the dread charge popular fear and emotion might be stirred to produce convictions without proper evidence. Subsequently, federal judges recognized this restrictive background in decisions limiting extension of the offense. In Cramer v. United States, 325 U.S. 1, 47 (1945), the first treason case to reach the United States Supreme Court, the Court reaffirmed the restrictive construction of the scope of treason.
HURST DAN M. KAHAN
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