Constitution of the United States/Art. III/Sec. 3/Clause 1 Meaning
Article III Judicial Branch
Section 3 Treason
Clause 1 Meaning
| Clause Text |
|---|
| 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. |
Historical Background on Treason[edit | edit source]
The Treason Clause is a product of the Framer's awareness of the "numerous and dangerous excrescences" which had distorted the English law of treason. The Clause was therefore intended to put "extend[ing] the crime and punishment of treason" beyond Congress's power.[1] Debate in the Constitutional Convention, remarks in the ratifying conventions, and contemporaneous public comments make clear that the Framers contemplated a restrictive concept of the crime of treason that would prevent the politically powerful from escalating ordinary partisan disputes into capital charges of treason, as so often had happened in England.[2]
Thus, the Framers adopted two of the three formulations and the phraseology of the English Statute of Treason enacted in 1350,[3] but they conspicuously omitted the phrase defining as treason the "compass[ing] or imagin[ing] the death of our lord the King,"[4] under which most of the English law of "constructive treason" had been developed.[5] Beyond limiting Congress's power to define treason,[6] the Clause also limits Congress's ability to make proof of the offense of treason easy to establish[7] and to define the punishment for treason.[8]
Levying War as Treason[edit | edit source]
Early judicial interpretation of the Treason Clause and the term "levying war" arose in the context of the partisan struggles of the early nineteenth century and the treason trials of Aaron Burr and his associates. In Ex parte Bollman,[9] which involved two of Burr's confederates, Chief Justice John Marshall, speaking for himself and three other Justices, confined the meaning of levying war to the actual waging of war. Chief Justice Marshall distinguished the offence of conspiring to levy war and the offence of actually levying war. In his view, "[t]he first must be brought into operation by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed."[10] This "enlistment of men to serve against the government," according to him, "does not amount to levying war."[11] Chief Justice Marshall was careful, however, to state that the Court did not mean that no person could be guilty of this crime who had not appeared in arms against the country. He stated: "On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors."[12] But, Chief Justice Marshall emphasized, "there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war."[13]
Based on these considerations and because no part of the crime charged had been committed in the District of Columbia, the Court held that Bollman and Swartwout could not be tried in the District, and ordered their discharge. Chief Justice Marshall continued by saying that "the crime of treason should not be extended by construction to doubtful cases"[14] and concluded that no conspiracy for overturning the Government and "no enlisting of men to effect it, would be an actual levying of war."[15]
Trial of Aaron Burr[edit | edit source]
After authoring the Supreme Court's decision in Ex Parte Bollman,[16] in which the Court ordered the discharge of two of Aaron Burr's associates, Chief Justice John Marshall presided over the treason trial of Burr. His ruling[17] denying a motion to introduce certain collateral evidence bearing on Burr's activities is significant both for rendering the latter's acquittal inevitable and for the qualifications and exceptions made to the Bollman decision. In brief, Chief Justice Marshall's ruling held that Burr, who had not been present at the assemblage on Blennerhassett's Island, could be convicted of advising or procuring a levying of war only upon the testimony of two witnesses to his having procured the assemblage. Because the operation had been covert, such testimony was naturally unobtainable. The net effect of Marshall's pronouncements was to make it extremely difficult to convict one of levying war against the United States short of the conduct of or personal participation in actual hostilities.[18]
Aid and Comfort to the Enemy as Treason[edit | edit source]
Since Ex Parte Bollman, the few treason cases that have reached the Supreme Court arose in the context of World War II and involved defendants charged with adhering to enemies of the United States and giving them aid and comfort. In the first of these cases, Cramer v. United States,[19] the Court considered whether the "overt act" at issue must itself manifest a treacherous intention or if it was enough that other proper evidence support such an intention.[20] The Court, in a 5-4 opinion by Justice Robert Jackson, in effect took the former view, holding that the Treason Clause's "two-witness principle" prohibited "imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness,"[21] even though the single witness in question was the accused himself. "Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses,"[22] Justice Jackson asserted. Justice William Douglas in a dissent, joined by Chief Justice Harlan Stone and Justices Hugo Black and Stanley Reed, contended that Cramer's treasonable intention was sufficiently shown by overt acts as attested to by two witnesses each, plus statements Cramer made on the witness stand.
In the second case, Haupt v. United States,[23] the Supreme Court sustained a treason conviction for the first time in its history. Although the overt acts that supported the treason charge--including defendant's harboring and sheltering of his son who was an enemy spy and saboteur, and assisting his son in purchasing an automobile and obtaining employment in a defense plant--were all acts that a father might naturally perform for a son, the Court held that this fact did not necessarily relieve such acts of the treasonable purpose of giving aid and comfort to the enemy. Speaking for the Court, Justice Jackson said: "No matter whether young Haupt's mission was benign or traitorous, known or unknown to the defendant, these acts were aid and comfort to him."[24] These acts, Justice Jackson continued, "were more than casually useful; they were aids in steps essential to his design for treason."[25] Thus, "[i]f proof be added that the defendant knew of his son's instruction, preparation and plans, the purpose to aid and comfort the enemy becomes clear."[26] The Court further held that conversation and occurrences long prior to the indictment were admissible evidence on the question of defendant's intent. And more important, it held that the constitutional requirement of two witnesses to the same overt act or confession in open court does not operate to exclude confessions or admissions made out of court if such evidence is merely corroborative and where a legal basis for the conviction has been laid by the testimony of two witnesses.
This relaxation of restrictions surrounding the definition of treason evoked obvious satisfaction from Justice Douglas, who saw in Haupt a vindication of his position in Cramer. In Justice Douglas's view, Cramer was wrongly decided because it departed from the rules that "the overt act and the intent with which it is done are separate and distinct elements of the crime"[27] and that "[i]ntent need not be proved by two witnesses but may be inferred from all the circumstances surrounding the overt act."[28] In Justice Douglas's view, "proof of treasonable intent in the doing of the overt act necessarily involves proof that the accused committed the overt act with the knowledge or understanding of its treasonable character."[29] He further opined that the Haupt decision was "truer to the constitutional definition of treason" by holding that "an act, quite innocent on its face, does not need two witnesses to be transformed into a incriminating one." [30]
In a third case, Kawakita v. United States,[31] the Supreme Court sustained a treason conviction against a defense that the defendant, a dual citizen of Japan and United States, had renounced his American citizenship. In that case, the defendant, who was a native-born citizen of the United States and also a national of Japan by reason of Japanese parentage and law, served during the war as a civilian interpreter of a private corporation producing war materials for Japan and was accused of brutally abusing American prisoners of war who were forced to work for the corporation. Upon his return to the United States following Japan's surrender, the defendant was charged with treason for his conduct toward American prisoners of war. In affirming the conviction, the Court concluded that the question regarding whether the defendant had intended to renounce American citizenship was peculiarly one for the jury and their verdict that he had not so intended was based on sufficient evidence. An American citizen, the Court continued, owes allegiance to the United States wherever he may reside, and dual nationality does not alter the situation.[32]
The vacillation of Chief Justice John Marshall between the Bollman[33] and Burr[34] cases and the vacillation of the Court in the Cramer[35] and Haupt[36] cases leave the law of treason in a somewhat uncertain condition. The difficulties created by Burr, however, have been largely obviated by punishing acts ordinarily treasonable in nature under a different label,[37] within a formula provided by Chief Justice Marshall himself in Bollman. There, Chief Justice Marshall opined that "Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason."[38] In his view, "[t]he wisdom of the legislature is competent to provide for the case,"[39] and Framers must have intended this legislative approach in the punishment of such cases because such general laws would be "formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate."[40]
- ↑ 2 Debates in the Several State Conventions on Adoption of the Constitution 469 (Jonathan Elliott ed., 1836) (James Wilson). James Wilson apparently drafted the clause as a member of the Committee of Detail and had some firsthand knowledge of how treason charges could be abused. See Cramer v. United States, 325 U.S. 1, 23 & note 32 (1944); J. Hurst, The Law of Treason in the United States: Selected Essays 90-91, 129-136 (1971).
- ↑ 2 Records of the Federal Convention of 1787, at 345-50 (Max Farrand ed., 1911); 3 Records of the Federal Convention of 1787, at 102-03 (Max Farrand ed., 1911); id. at 447, 451, 466; 3 Records of the Federal Convention of 1787, at 209, 219, 220 (Max Farrand ed., 1911) ; The Federalist No. 43 (James Madison); id. No. 84 (Alexander Hamilton); The Works of James Wilson 663-69 (R. McCloskey ed. 1967). The matter is comprehensively discussed in J. Hurst supra note here, at chs. 3, 4.
- ↑ 25 Edward III, Stat. 5, ch. 2. See J. Hurst, supra note here, at ch. 2.
- ↑ J. Hurst supra note here, at 15, 31-37, 41-49, 51-55.
- ↑ Id.; see also id. at 152-53 ("[T]he record does suggest that the clause was intended to guarantee nonviolent political processes against prosecution under any theory or charge, the burden of which was the allegedly seditious character of the conduct in question. The most obviously restrictive feature of the constitutional definition is its omission of any provision analogous to that branch of the Statute of Edward III which punished treason by compassing the death of the king. In a narrow sense, this provision perhaps had no proper analogue in a republic. However, to interpret the silence of the Treason Clause in this way alone does justice neither to the technical proficiency of the Philadelphia draftsmen nor to the practical statecraft and knowledge of English political history among the Framers and proponents of the Constitution. The charge of compassing the king's death had been the principal instrument by which 'treason' had been used to suppress a wide range of political opposition, from acts obviously dangerous to order and likely in fact to lead to the king's death to the mere speaking or writing of views restrictive of the royal authority.").
- ↑ The clause does not, however, prevent Congress from specifying other crimes of a subversive nature and prescribing punishment, so long as Congress is not merely attempting to evade the restrictions of the Treason Clause. E.g., Ex parte Bollman, 8 U.S. (4 Cr.) 75, 126 (1807); Wimmer v. United States, 264 Fd. 11, 12-13 (6th Cir. 1920), cert. denied, 253 U.S. 494 (1920).
- ↑ By the requirement of two witnesses to the same overt act or a Confession in open Court.
- ↑ Cl. 2, "Corruption of the Blood and Forfeiture."
- ↑ 8 U.S. (4 Cr.) 75 (1807).
- ↑ Id. at 126.
- ↑ Id.
- ↑ Id.
- ↑ Id.
- ↑ Id. at 127.
- ↑ Id.
- ↑ 8 U.S. (4 Cr.) 75 (1807).
- ↑ United States v. Burr, 8 U.S. (4 Cr.) 469, Appx. (1807).
- ↑ There have been lower court cases in which the Government obtained convictions of treason. Following the Whiskey Rebellion, the Government obtained convictions of treason based on a ruling that forcible resistance to the Government enforcing revenue laws was a constructive levying of war. United States v. Vigol, 29 F. Cas. 376 (No. 16621) (C.C.D. Pa. 1795); United States v. Mitchell, 26 F. Cas. 1277 (No. 15788) (C.C.D. Pa. 1795). After conviction, the defendants were pardoned. See also for the same ruling in a different situation the Case of Fries, 9 F. Cas. 826, 924 (Nos. 5126, 5127) (C.C.D. Pa. 1799, 1800). The defendant was again pardoned after conviction. About a half century later, a court held that participating in forcible resistance to the Fugitive Slave Law was not a constructive levying of war. United States v. Hanway, 26 F. Cas. 105 (No. 15299) (C.C.E.D. Pa. 1851). Although the United States Government regarded the activities of the Confederate States as a levying of war, the President by Amnesty Proclamation of December 25, 1868, pardoned all those who had participated on the Southern side in the Civil War. In applying the Captured and Abandoned Property Act of 1863 (12 Stat. 820) in a civil proceeding, the Court declared that the foundation of the Confederacy was treason against the United States. Sprott v. United States, 87 U.S. (20 Wall.) 459 (1875). See also Hanauer v. Doane, 79 U.S. (12 Wall.) 342 (1871); Thorington v. Smith, 75 U.S. (8 Wall.) 1 (1869); Young v. United States, 97 U.S. 39 (1878). While Sprott, Hanauer, Thorington, and Young discussed concepts concerning adhering to the United States' enemies and giving enemies of the United States Aid and Comfort, these are not criminal cases. Instead, they dealt with attempts to recover property under the Captured and Abandoned Property Act by persons who claimed that they had given no aid or comfort to the enemy. These cases did not, therefore, interpret the Constitution.
- ↑ 325 U.S. 1 (1945).
- ↑ Id.
- ↑ Id. at 35.
- ↑ Id. at 34-35. Earlier, Justice Jackson had declared that this phase of treason consists of two elements: "adherence to the enemy; and rendering him aid and comfort." Id. at 29. A citizen, it was said, may take actions "which do aid and comfort the enemy . . . but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason." Id.
- ↑ 330 U.S. 631 (1947).
- ↑ Id. at 635.
- ↑ Id.
- ↑ Id. at 635-36.
- ↑ Id. at 645.
- ↑ Id.
- ↑ Id.
- ↑ Id. at 645-46. Justice William Douglas cites no cases for these propositions. Justice Frank Murphy in a solitary dissent stated: "But the act of providing shelter was of the type that might naturally arise out of petitioner's relationship to his son, as the Court recognizes. By its very nature, therefore, it is a non- treasonous act. That is true even when the act is viewed in light of all the surrounding circumstances. All that can be said is that the problem of whether it was motivated by treasonous or non-treasonous factors is left in doubt. It is therefore not an overt act of treason, regardless of how unlawful it might otherwise be." Id. at 649.
- ↑ 343 U.S. 717 (1952).
- ↑ 343 U.S. at 732. For citations in the subject of dual nationality, see id. at 723 n.2. Three dissenters asserted that Kawakita's conduct in Japan clearly showed he was consistently demonstrating his allegiance to Japan. Id. at 746 ("As a matter of law, he expatriated himself as well as that can be done.").
- ↑ Ex parte Bollman, 8 U.S. (4 Cr.) 75 (1807).
- ↑ United States v. Burr, 8 U.S. (4 Cr.) 469 (1807).
- ↑ Cramer v. United States, 325 U.S. 1 (1945).
- ↑ Haupt v. United States, 330 U.S. 631 (1947).
- ↑ Cf. United States v. Rosenberg, 195 F.2d 583 (2d. Cir. 1952), cert denied, 344 U.S. 889 (1952), holding that in a prosecution under the Espionage Act for giving aid to a country, not an enemy, an offense distinct from treason, neither the two-witness rule nor the requirement as to the overt act is applicable.
- ↑ Ex parte Bollman, 8 U.S. (4 Cr.) 75, 126 (1807).
- ↑ Id.
- ↑ Id. at 127. Justice Felix Frankfurter appended to his opinion in Cramer v. United States, 325 U.S. 1, 25 n.38 (1945), a list taken from the government's brief of all the cases prior to Cramer in which the Treason Clause was construed.
