1
The Historic Background
of the
Treason Clause
in the Constitution
IN ITS MOST original aspects, as in the commerce clause, the Constitution of the United States expresses policies the strength of which lies in their capacity to embrace and take new vigor from changed circumstances since 1787. But there are other aspects in which the strength of constitutional policy lies in the definiteness and the distillation of experience given by the invoking of historic concepts. This has been most marked, perhaps, in regard to institutions recognized by the Constitution, or some of the procedural decencies guaranteed to the individual facing the power of the state.
Article III, Section 3, bears the mark of a provision the primary reference of which is to history:
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 framers did not choose to contrive their own definition of the crime of attempting the subversion of the government. "Treason" is itself a term which — to speak only of the Anglo-American background — was familiar to the common law before it was used in the Statute of 25 Edward III, from which the Constitution derives its language concerning the levying of war, and adhering to enemies, giving them aid and comfort.1 The record makes it clear that terms thus weighted with historic significance were deliberately chosen, in order better to deal with a problem the practical dangers of which history was believed to teach.2
The appeal of Cramer v. United States, recently heard on reargument in the Supreme Court of the United States, illustrates both the need to resort to history and the limitations of the assistance which history can give, in applying the policy of the treason clause.3 As has been noted, the propriety or wisdom of resort to history is implicit in the framers' deliberate use of a tradition-weighted concept of the crime of subversion of the state. This of course does not mean that constitutional policy is to be straitjacketed or to be easily evaded by skirting the edges of the peculiar situations which make up the history of the policy involved. The American decisions are uniform to the effect that the restrictive policy of the treason clause is to be understood in the light of history, but, likewise, that it is to be vigorously and sympathetically enforced out of respect to the lessons of that history.4 Thus, there is of course no difficulty in ruling that, within the terms borrowed from a fourteenth century statute, aid may be rendered an enemy by means familiar to the commercial world of the twentieth century.5
Granted that the treason clause calls for careful examination of the history evoked by its terms, how far may that inquiry be pressed? It would beg the question offhandedly to borrow English experience, for in large part the balance between acceptance and rejection of the English inheritance is that which gives its peculiarly American flavor to our law. Some dicta have gone so far as to intimate the necessity of a wholesale repudiation of the English background of the law of treason.6 This seems illogical: if one accepts the relevance of history, it is the logic of history and not of some juristic theory which must decide what evidence is proper and pertinent. The clear weight of American authority accordingly takes the common-sense approach, that English materials may properly be used to help explore the policy behind the concepts borrowed from the Statute of Edward III.7 But American judges also have recognized that the very inclusion of a restrictive definition of "treason" in the Constitution plainly evidences a repudiation of some part of the English experience. In one respect, the comparison between what the framers took from English history, and what they pointedly omitted, is most striking. The treason clause contains no provision analogous to that by which the Statute of Edward III penalized the compassing of the king's death. In the light of the record, it is too shallow an explanation to hold that this omission occurs simply because that provision had no analogue in a republic.8 Charges of compassing the king's death had been the principal instrument by which "treason" had been employed in England for the most drastic, "lawful" suppression of political opposition or the expression of ideas or beliefs distasteful to those in power.9 At the time of the adoption of the Constitution, the treason clause was most praised for the reason that it prevented the use of treason trials as an instrument of political faction; and the link here to the omission of any provision similar to the charge of compassing seems clear.10 Judges have accordingly denied the general relevance of English precedents peculiarly derived from the charge of compassing the king's death and have agreed that the mere expression of beliefs cannot be deemed "treason" within the constitutional definition.11
In a respect less clearcut, but as important, the lesson of history has called for careful distinction between aspects of English history which help explain the policy of the treason clause and others which run counter to it. An elementary caution which must be observed in the use of legal history is to avoid equating it with judge-made law alone. Indeed, the greatest usefulness of an historical approach to the determination of policy should be the recognition of the interaction of legal and non-legal institutions and pressures in the shaping of law. No better illustration could be wished than the story of the desuetude of the crime of "constructive" levying of war. According to the decisions of the English courts, in 1787, the levying of war upon the king could consist in any effort by violence to fix or enforce public policy; and this was taken to include forcible resistance to the general execution of a law, or the attempt by force to deprive any class of the people of their rights under law, or to influence the king's choice of counsellors. This amounted to saying that the line between treason and riot was unpredictable and would shift towards the more serious crime largely according to the ruthlessness or strong-mindedness of the administration. This, however, was doctrine better suited to an age of royal rather than of parliamentary power, and by the end of the eighteenth century English juries had reflected this basic shift in constitutional politics by acquitting of "treason" several notable defendants who, like Home Tooke or Lord George Gordon, had been at most guilty of inciting to riot.12 In the first years under the Constitution, Federalist judges applied the broad scope of English legal doctrine in cases arising out of the Whiskey Rebellion and the disturbances against the House Tax of 1799, which were at least on the borderline between subversion and riot. Since the Constitution had deliberately chosen to define "treason" in terms broadly interpreted by English judges in the interest of the state, and at the same time had clearly indicated a policy favoring restriction of the scope of the crime, there was room for doubt, if a narrow reading of history were applied to the treason clause. But President John Adams pardoned the rioters in 1799, because he believed that their convictions imported into the law concepts inconsistent with contemporary policy.13 And subsequently, Justices Livingston and Grier, on circuit, insisted that not the formal doctrine of the English reports but the living practice of the English constitution was the proper background to understand the restrictive policy which Article III, Section 3, expresses.14 As long since in England, so in the United States since the Civil War, with one abortive exception, no effort seems to have been made to charge the crime of treason by levying war simply on the basis of a breach of the peace without a showing of a specific intent to overthrow the government.15
The relevance of English history to the constitutional definition of treason introduces also the more specific question of determining the sources of that history. There is historic logic in beginning with the English materials in a subject like "treason," because American policy was derived from American ideas concerning the meaning of English experience as well as American professional familiarity with English statutes and treatises. This means giving attention to those aspects of English materials which the evidence indicates were most significant to Americans, or which best illuminate the development of the branches of treason which concerned American law, rather than trying to trace all the ramifications of the English law as such. Thus, in the analysis of "treason," it proves sound to place first the analysis of the accounts of the crime given in the great English law treatises prior to the adoption of the United States Constitution, because only in them do we find any careful attempt to analyze the policy behind and elements of the offense and because the Americans obtained their knowledge of the English law and experience primarily from the treatises. Americans likewise had access to English statutory materials, which are thus relevant to our inquiry. The English State Trials seem, however, to deserve only third rank in value for exploring the historic background of the treason clause. True, this is partly because of inherent limitations; the impressive volumes of the State Trials contain a maximum of pleadings, tedious testimony, and records of executions and a minimum of helpful analysis. Moreover, one famous trial after another proves on careful examination to be so interwoven with the peculiar politico-religious motives and pressures of its time as to be of little value beyond furnishing cumulative evidence that careful and realistic definition of the offense is necessary if "treason" is not to be readily abused as an instrument of faction. But, the ultimate reason which must make the State Trials a dubious source for understanding the constitutional provision is that there is little satisfactory evidence that Americans had access to or extensive knowledge of the records of English trials, as distinguished from their familiarity with the basic English statutes and treatises.16
When one turns to the American sources of the period prior to the framing of the Constitution, the most obvious feature is the overwhelming predominance of materials of a legislative nature. This of course presents merely an example of a familiar problem of the assessment of historical sources: since history is necessarily based on records, one must ask whether the matter which chanced to be recorded and preserved can be taken as typical of the general run of what men were doing and thinking. Records of executive and judicial action in the earlier periods are less voluminous than the statute books. But this does not necessarily mean that there was no significant activity in the executive or judicial fields. Thus there is a handful of "treason" trials recorded for the period of the Revolution. The reason for the paucity of civil trials, on further examination, proves to be the widespread resort to summary administrative or court martial handling of cases. Again, the evidence of the statute books would suggest that "treason" was handled with great severity. But such evidence as is available of the judicial and executive practice suggests that in the whole picture severity was felt in the drastic confiscation of property rather than in the imposition of capital punishment.17 There is, however, no evidence to suggest that the legislative materials do not fairly reflect the prevailing notions of the desirable scope of "treason" and the elements of the crime. The statute books thus in this, as in so many instances, furnish an important and too often ignored type of evidence of the evolution of policy.
A search for the legislative type of source material leads to various avenues. There are, for example, colonial charters, proprietary grants, and colonial and state "Fundamental Articles" and constitutions for each of the original thirteen states. Moreover, this type of material suggests an important link to the English sources. Instructions to royal governors must be checked. There was, likewise, royal surveillance of the action of colonial legislatures and executive and judicial agencies under these fundamental colonial documents, and this control may be observed through the records of the Board of Trade and the Privy Council.18 An adequate picture of American policy as reflected in legislation before the Constitution requires search of the statute books of the thirteen original states through 1790, and of Vermont from its separation from New York in 1776 through 1790. Similarly, the Declaration of Independence, the Articles of Confederation and the "Ordinance of 1787 for the government of the territory of the United States northwest of the river Ohio" (as well as the legislation of the Northwest Territory), together with the Journals of the Continental Congress constitute basic sources for the study of policy evolving before 1787. Especially in the case of the colonial and state statute books, the inadequacy or absence of indexing will frequently require a check item by item or even by paging of volumes.19 The familiar law reports contain no decisions in treason cases prior to 1790, except for a handful of Pennsylvania cases in the volumes of Dallas, reflecting a burst of prosecuting zeal following the recovery of Philadelphia from the British After the adoption of the Constitution, the reports contain between thirty-five and forty instances of treason prosecutions carried to the point of judicial decision. Though not up to the standard of inclusiveness set by Howell's English State Trials, Wharton's State Trials of the United States (Philadelphia, 1849), and Lawson's American State Trials (17 volumes, St. Louis, 1914-1926) contain also a number of important cases not elsewhere easily accessible, notably the trials of Thomas Wilson Dorr (1844) and of John Brown (1859) on charges of treason by levying war against the States of Rhode Island and Virginia, respectively. Local histories contain references to other abortive efforts to employ treason indictments against individuals who and groups which had incurred the wrath of more powerful elements in the community. The troubled history of the Mormons provides outstanding examples in indictments brought against Mormon leaders in Missouri in 1838 and in Illinois in 1844. 20 The incomplete as well as the finished stories of history may cast helpful light on the growth and meaning of public policy, and the inconclusive result of such charges as those in the Mormon cases contribute to the phenomenon already noted, of the practical abandonment of any broad resort to the crime of levying of war.
For the Philadelphia Convention and its sequel, the basic sources are, of course, Farrand's Records of the Federal Convention of 1787, The Federalist, and Elliott's Debates in the Several State Conventions on the Adoption of the Federal Constitution. The history of the treason clause presents an especially clear example of the illumination to be had from Elliott's collection of the debates in the state ratifying conventions, for it is there that the proud citation of the treason clause by the Constitution's proponents makes most clear the intent that its restrictive definition safeguards normal political processes against repressive prosecutions. Our constitutional tradition is not expressed only in the formal records, however. The private papers, speeches and draftsmanship of American statesmen are contributing factors. Thus further light on the restrictive policy expressed in Article III, Section 3, may be had from such diverse sources as Thomas Jefferson's letter of November 1, 1778, to Chancellor Wythe concerning the former's proposed Virginia "bill for proportioning Crimes and Punishments in cases heretofore Capital," and James Wilson's Lectures on Law, delivered in the College of Philadelphia in 1790 and 1791. 21
Thus, even a brief canvass of the variety of historical sources of potential help in explaining the policy background of the Constitution's treason clause suggests the complex wealth of material which such an approach may add to the case-trained lawyer's familiar tools of decision and opinion. But, likewise, it suggests that since the historical approach seeks nothing less than to comprehend the whole pattern of causes which shape a given policy, it requires of the advocate an imaginative readiness to forego the abstract logic of doctrine for the living logic of events.
NOTES
1 See Glanvill, De Legibus et Consuetudinibus Regni Angliae (Woodbine, ed. New Haven, 1932) Lib. 1, cap. 2 Lib. 14, cap. 1 Bracton, De Legibus et Consuetudinibus Angliae (Woodbine, ed. New Haven, 1932) f 118b, Coke, Institutes of the Laws of England, Third Part (5th ed. London, 1671) 2-3.
2 See 2 Farrand, ed. , Records of the Federal Convention of 1787 (New Haven, 1937) 345-350, Wilson, Lectures on Law, delivered in the College of Philadelphia, 1790 and 1791, in 3 Works of Hon James Wilson (Bird Wilson, ed. , Philadelphia, 1804) 99-100.
3 See United States v. Cramer, 137 F. (2d) 888 (C.C.A. 2d 1943), reversed, 325 U.S. 1 (1945). The case in essence posed the problem of the relation between the intent and the "act elements in the crime. On two separate occasions, the defendant, a naturalized American citizen, was observed by two F.B I agents to meet over a meal with an enemy agent. The two witnesses could testify only to the fact of the meeting, the defendant's admissions on the witness stand furnished the only evidence from which it could be argued that he knew that he was dealing with the enemy and that in fact he gave aid to the enemy by holding funds for the latter's convenience and by putting him in contact with a likely friend. The defense contended that if the constitutional requirement of two witnesses to the same overt act were to give substantial protection to innocent persons, only an act would suffice which "manifested" the treason, and that an act innocent on its face was not enough. The Government replied that this analysis seemed to mean that the act must be in itself at least some evidence of the treasonable intent, that such a construction deprived the intent element of the offense of its separate significance and so narrowed the practical scope of the crime as unreasonably to imperil the community. This is a much simplified statement of the case presented, but will suffice, since it is not the purpose of this discussion to explore the merits of the issue, but rather the use of historical materials in its solution.
4 E.g., Iredell, Circ. J., in Case of Fries, Fed. Cas. No. 5126, 9 Fed. Cas. 826, 912 (Circ Ct. , D Pa , 1799), Marshall, Circ J., in United States v. Burr, Fed. Cas. No. 14,693 25 Fed. Cas. 55, 159-160 (Circ Ct. , D. Va. , 1807), Field, Circ , J., in United States v. Greathouse, Fed. Cas. No. 15,254, 26 Fed. Cas. 18, 21 (Circ Ct. , N D Cal. , 1863).
5 Cf. United States v. Fricke, 259 Fed. 673 (S.D. N.Y., 1919).
6 See Charge to Grand Jury, by Nelson, Circ , J., Fed. Cas. No. 18,271, 30 Fed. Cas. 1034, 1035 (Circ Ct. , S.D. N.Y. , 1861).
7 See note 4, supra.
8 See 2 Swift, A System of the Laws of the State of Connecticut (Windham, 1796) 297, Rawle, A View of the Constitution of the United States (2d ed. Philadelphia, 1829) 141.
9 8 Holdsworth, History of English Law (2d ed. 12 vol. London, 1937) 309, 311.
10 See Madison, in The Federalist (Lodge, ed. N.Y. , 1908) No. XLIII, pp. 269, 463 James Wilson, in the Pennsylvania Convention, 2 Elliott, Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Washington, 1854) 469, 487.
11 See Peters, J., in Case of Fries, Fed. Cas. No. 5126, 9 Fed. Cas. 826 909 (Circ Ct. , D Pa , 1799) (first trial), and Chase, Circ J., in same case, Fed. Cas. No. 5127, 9 Fed. Cas. 924, 927 (Circ Ct. , D Pa , 1800) (second trial), Wimmer v. United States, 264 Fed. 11, 13 (C.C.A. 6th, 1920), cert. den.253 U.S. 494.
12 8 Holdsworth, op. cit. supra, note 9, p. 335 ff.
13 See United States v. Vigol, Fed. Cas. No. 16,621, 28 Fed. Cas. 376 and United States v. Mitchell, Fed. Cas. No. 15,788, 26 Fed. Cas. 1277 (Circ Ct. , D Pa , 1795), Case of Fries, note 11, supra, 9 Works of John Adams (Boston, 1856) 58, 10 id. 153, 154.
14 Livingston, Circ J., in United States v. Hoxie, Fed. Cas. No. 15,407, 26 Fed. Cas. 397, 40o, 402 (Circ Ct. , D. Vt. , 1808), Grier, Circ J., in United States v. Hanway, Fed. Cas. No. 15299, 26 Fed. Cas. 105, 127 (Circ Ct. , E.D.Pa. , 1851).
15 The exception was the short-lived attempt to charge the leaders of the Homestead strike with treason See Paxson, C.J., in Commonwealth v. O'Donnell, 12 Pa Co 97, 104-105 (O & T Allegheny Cty 1892), Burgoyne, Homestead (Pittsburgh, 1893) 294.
16 Coke, Hale, Hawkins, and Foster are the English treatises of which Americans had the greatest familiarity As to American access to English legal sources in general, see Aumann, The Changing American Legal System (Columbus, 1940), Goebel and Naughton, Law Enforcement in Colonial New York (N.Y. 1944) xxni, xxv, Morns, Studies in the History of American Law (N.Y. 1930) 44 ff. , 67, Warren, A History of the American Bar (Boston, 1911) Ch VIII.
17 Palsitts, Minutes of the Commissioners for detecting and defeating Conspiracies in the State of New York, 1778-1781 (3 vol. Albany, 1909), Van Tyne, The Loyalists in the American Revolution (N.Y. 1929) 271, 272.
18 See Labaree, Royal Instructions to British Colonial Governors, 1670-1776 (2 vol. N.Y. 1935), Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws (7 vol. Washington, 1909).
19 See Babbitt, Hand-List of Legislative Sessions and Session Laws, Statutory Revisions, Compilations, Codes, etc , and Constitutional Conventions of the United States and Its Possessions and of the Several States, to May, 1912 (State Library of Massachusetts Boston, 1912).
20 See Culmer, New History of Missouri (Mexico, Mo, 1938) 212 1 Roberts, Comprehensive History of the Church of Jesus Christ of Latter-Day Saints (Salt Lake City, 1930) 499, 500, 529, 530, 2 id. 254, Ford, History of Illinois (Chicago, 1854) 337.
21 See 1 Writings of Thomas Jefferson (Library ed. Washington, 1903) 216, 218, 220-221, Wilson, Lectures on Law, op. cit. supra, note 2 Ch. V.