CHAPTER 1
PART I
Definition of Treason
U.S. history owns claim to one of the most notorious traitors in modern society. His name is forever linked with treason and his story is well known.
Benedict Arnold, a trusted friend of George Washington, became disgruntled at lack of credit for his brilliance, bravery, and successes in battle and decided to sell out his soldiers and command post, West Point, New York, during the Revolutionary War, to the British for British gold, along with other benefits. (Sources differ as to the monetary amount.) His punishment? Although he escaped capture, Arnold died persona non grata in London, scorned even by the British.
Today, in the 21st century, when one thinks of treason, what is the first situation that comes to mind? Your mind? An American-born young person fighting with the Taliban against American soldiers in a Middle Eastern country? An American-born terrorist plotting on American soil? A multinational company, that began as a small American grown company, siding with a foreign government on some issue? A protester burning the American flag? An American political figure or political body yielding some of the nation's sovereign authority to an international governing body?
That situation or action, when it occurs, may shock you down to your red, white, and blue blood and bones, but is it really treason, a hanging offense unless pardoned by the President himself? Or is it a lesser felony that should be prosecuted as such? Or is it prosecutable at all?
Origin of Definition in Founding Documents
The obvious place to pinpoint the original American definition of treason and the intent of this country's Founding Fathers is in our founding documents: the Declaration of Independence, the Articles of Confederation, the U.S. Constitution, and, while not a document, but considered by historians to be one of the most important political works in our nation's history, the Federalist Papers. The Federalist Papers, authored by the Framers of the Constitution, James Madison and Alexander Hamilton, along with John Jay, argued the inadequacies of the Articles of the Confederation and the need for the U.S. Constitution.
The word "treason" is not found in the Declaration of Independence. However, to preclude and to defend against the accusation of treason, committed by the colonists against the British king, the authors of the Declaration announced to King George III and the rest of the world in 1776, that the colonies considered themselves absolved of allegiance to the British crown:
"That these United Colonies are, and of Right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all Allegiance to the British Crown, and that all political Connection between them and the State of Great-Britain, is and ought to be totally dissolved; and that as FREE AND INDEPENDENT STATES, they have full power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which INDEPENDENT STATES may of right do."
This concept of allegiance that the colonists absolved themselves of has played throughout history and still plays today a major role in determining whether treason has been committed.
Between the 1776 Declaration of Independence and the 1787 ratification of the U.S. Constitution, there were the Articles of Confederation, the short official title being the "Articles of Confederation and Perpetual Union".
Drawn up in 1777-78 by the delegates of the first 13 states, consisting of New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland (Maryland was the last state to sign in 1781.), Virginia, North Carolina, South Carolina, and Georgia, the Articles of Confederation were thirteen articles that as a whole formed a "friendship" pact between these states.
All discussion of the legislative and political actions of the individual states regarding treason aside (This can be found elsewhere, one source in particular being Hurst's Chapter 3), the Articles of Confederation, like the Declaration of Independence, also do not contain a definition of treason. The actual definition does not appear until written later into the 1787 U. S. Constitution Article III. However, the Confederation Articles do bring up the issue of states' rights and their jurisdiction over treason in the Confederation's Article IV, which states:
"If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fl ed, be delivered up and removed to the State having jurisdiction of his offense. Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State."
The only other mention of treason in the Articles of Confederation is in Article V, referring to the exclusion of treason from the protective privileges of members of Congress:
"Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress, and the members of Congress shall be protected in their persons from arrests or imprisonments, during the time of their going to and from, and attendance on (sic) Congress, except for treason, felony, or breach of the peace."
The inadequacies of the Articles of Confederation led to work on the U.S. Constitution in 1787 by the Federalists, who were those in favor of a stronger central government.
The Framers (or authors/architects) of the Constitution were expressly authorized by the Confederation Congress to revise the Articles of Confederation with "alterations and provisions therein" that would render the new federal constitution "adequate to the exigencies of government and the preservation of the Union." (See the Federalist Papers essay Number 40.) Thus, the wording in the above Articles of Confederation regarding states' rights of jurisdiction over treason and exclusion of treason from congressional privileges is also used in the U.S. Constitution Article No. IV, Section 2 and Article No. I, Section 6.
And, in keeping with the 1776 quest for freedom from tyranny, the "Founding Fathers", and James Madison in particular, added a very restrictive definition of treason into Article III, Section 3 of the new U.S. Constitution:
"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."
The term "levying war" in the first sentence of the definition was borrowed from the 14th century British Statute of Treason under King Edward III and has been analyzed by a multitude of authoritative writers, both British and American. The writers most often referred to for assistance in interpretation are the 17th and 18th century writers Lord Edward Coke, Judge Matthew Hale, Judge Michael Foster, the highly esteemed Judge William Blackstone, William Hawkins, and Revolutionary War attorney James Wilson. The most exhaustive analysis of the term, though, and also the most well-known, might be U.S. Supreme Court Chief Justice John Marshall's circuit court opinion in the 1807 Aaron Burr trial, discussed in Part II of this book.
Simply put, to levy war against the U.S. is to attempt to overthrow or overturn the U.S. government by use of force. And as Chief Justice Marshall succinctly states at one point in his court opinion "There is no difficulty in affirming that there must be a war or the crime of levying it cannot exist, ...".
Prosecutors sometimes use the doctrine of constructive levying war, where the design is not to overturn the government but to accomplish another purpose by the use of force, such as preventing a tax law from being executed. The purpose of the use of the doctrine of constructive levying war is to bring an action into the realm of treason, and prosecutable as such. This practice has engendered a great deal of criticism from many historians and legal authorities. (See Part II for further discussion.)
According to Gale Encyclopedia of American Law, hereafter referred to as GEAL, the term "Aid and comfort", in the first sentence of the definition, (during times of war) would refer to any act that betrays allegiance to the U.S and has the effect of weakening the ability of the U.S. to attack or defend itself against its enemies. This would include such acts as furnishing the enemy with supplies, classified information, transportation, and shelter. But according to GEAL, the intent must be there, rather than accidently or unintentionally, in order to be convictable as treason under the Constitution.
Thus, the importance of the word "overt" in the second sentence of Article III Section 3's definition. An overt act would be an open or public act that is meant to accomplish a treasonous intention. It must be more than an act of preparation, and to be convictable as treason, must be witnessed by at least two people. The requirement for at least two witnesses is extremely important. Not one witness, not hearsay evidence, not assumptions, not conjectures. Only the testimony of at least two witnesses to the same overt act is acceptable for conviction of treason charges.
The intent and the act are equally important. Simply put, a treasonous intent without an overt act is not treason, and a treasonous act without intent is not treason. Such questions may arise as, at what point must intent be shown and how it is to be evidenced. Then the judge and jury must decide the answers, keeping in mind the authority of set precedents (rulings and decisions made by previous judges and juries in similar cases).
Although Article III does not actually state the words "during times of war", GEAL interprets the Article III treason clause as applying only to acts committed during war, or war being levied. Peacetime disloyal acts are not considered treasonous under the Constitution. The reference book does not cite a basis for this conclusion but it appears to be drawn from the traditional interpretation of the two phrases "levying war" and "adhering to their Enemies" as being dependent on each other. However, peacetime disloyal acts may be prosecuted as some other lesser crime.
There has been much written that tries to separate "levying war" and "adhering to their Enemies" into two separate independent instances of treason, as mentioned in the Introduction. However, traditionally, adhering to enemies or aiding enemies with information in peace time is prosecuted as espionage, if it meets the criteria for espionage, or some lesser felony.
Since Congress, on its own, does not have the power to change the Article III Section 3 definition of treason, those crimes that would appear to be treasonous, but are not by definition, have been made by Congress into lesser felony crimes. Some of these are misprision of treason (concealment of treason) and seditious conspiracy, and are set down in the collection of legislation known as U.S. Code, as explained further in Part II of this book.
The second paragraph of Article III Section 3 does give Congress the power to set the punishment, and in 1790 and 1862 the punishment was set as death as the maximum punishment and the minimum penalty being 5 years imprisonment and $10,000 fine. (See U.S. Code Title 18 Section 2381). The second paragraph of Article III Section 3 also forbids the punishment of treason being extended to family ("blood") or inheritances (no "Forfeiture except during the Life of the Person attainted.")
In all, treason is mentioned four times in the U.S. Constitution, being specifically:
• Article I, Section 6 on Congressmen's Privileges from Arrest
• Article II, Section 4 on Presidential Removal from Office for Treason
• Article III, Section 3 on the Definition
• Article IV, Section 2 on States' Rights Regarding Jurisdiction
A fifth section, Article II, Section 2, does not specifically mention, but implies treason, in the Presidential Powers of Pardon:
"and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."
Alexander Hamilton, in the Federalist Papers essay No.74, argues the case for not including the word "treason", for the purpose of prevention or deterrence. Knowing that they could be pardoned might embolden traitors, according to Hamilton. (See his quote from essay No. 74 below.)
Proponents' Arguments in the Federalist Papers
Before the new Constitution was ratified in 1787, a series of essays, 85 in all, appeared in New York City newspapers under the title "The Federalist". Written by the principal architects of the U.S. Constitution, James Madison and Alexander Hamilton, along with John Jay, under the pen name of Publius, these essays were intended to raise the tone and increase the enlightened reasoning in the national debate on the ratification of the Constitution. They were in particular aimed at the voters of the New York state ratification convention.
Known as the Federalist Papers, the essays addressed the deficiencies of the Articles of Confederation mainly in essays No.1-40, and the need for the new Constitution.
The issue of treason is brought up in Federalist Papers essays Nos. 43, 74, and 84.
In essay No. 43, James Madison argues for the inclusion in Article III, Section 3 of Congress's powers of punishment, along with the restraints placed upon those powers:
"As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author."
In Federalist Papers essay No. 74, Alexander Hamilton argues for presidential powers of pardoning, as written in the Constitution's Article II, Section 2, Paragraph 1:
"and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."
In arguing the case of whether to bestow the powers of pardoning treason in the legislative branch or the President, Hamilton concludes:
"But the principal argument for reposing the power of pardoning in this case in the Chief Magistrate (Hamilton referring to the President) is this: in seasons of insurrection or rebellion, there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity (sic) of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed that a discretionary power with a view to such contingencies might be occasionally conferred upon the President, it may be answered in the first place that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt."
