Hurst's Law of Treason
Introduction by Jon Roland
Published in University of West Los Angeles Law Review, Vol. 34, 2002.
The Law of Treason in the United States, by James Willard Hurst, stands as a classic legal treatise on this constitutional topic. Now that the prospect of treason trials has emerged, it is time to make it available to a larger audience, and we have done so.
Traditionally, treason was betrayal of the state, which, in most countries meant the monarch. A person who commits treason is a traitor. However, the Framers of the U.S. Constitution chose to adopt a restricted definition of treason, making it the only term defined in the body of the Constitution:
Art. III Sec. 3: 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.
Their reason for doing this was the common English practice of charging political opponents with a capital offense, often on weak evidence, under the doctrine of "constructive treason". James Wilson was the principal author of the provision. A classic case was the trial of Algernon Sidney, beheaded in 1683 for plotting against the king, based largely on passages from his treatise, Discourses Concerning Government, published posthumously in 1698.
"Treason" is itself a term which was familiar to the common law before it was used in the Statute of 25 Edward III (1350), from which the Constitution derives its language concerning the levying of war, and adhering to enemies, giving them aid and comfort. However, the treason clause contains no provision analogous to that by which the Statute of Edward III penalized the compassing of the king's death, since in a republic there is no monarch and the people are sovereign. 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.
The Statute of 7 William III (1694) introduced the requirement of two witnesses to the same or different overt acts of the same treason or misprision of treason, made several exceptions to what could be considered treason, and protected the right of the accused to have copies of the indictment and proceedings against him, to have counsel, and to compel witnesses, privileges not previously enjoyed by those accused of common law crimes. This statute served as a model for colonial treason statutes.
The first major cases under the U.S. Constitution arose from a 1807 conspiracy led by Aaron Burr, who had served as vice president under Thomas Jefferson 1801-05, to seize parts of Mexico or the newly acquired Louisiana Territory. Burr and two confederates, Bollman and Swartwout, were charged with treason.
Chief Justice John Marshall opened the door for making other than treason a crime in Ex parte Bollmann when he held that the clause does not 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, although he cited no authority for doing so other than the doctrine of necessity. However he also stated "However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that ... it has been determined that the actual enlistment of men to serve against the government does not amount to levying of war." On the basis of these considerations and due to the fact that 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. He continued by saying that "the crime of treason should not be extended by construction to doubtful cases".
Burr was acquitted September 1, 1807, after an opinion rendered by Chief Justice John Marshall in U.S. v. Burr that further defined the requirements for proving treason under the constitutional restriction. The Court 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, but the operation was covert, and such testimony was unobtainable. Marshall's opinion made it extremely difficult to convict one of levying war against the United States by other than personal participation in actual hostilities.
The Burr and Bollman cases prompted the introduction in 1808 of a Senate bill to further define the crime of treason. The debate on that bill, which was rejected, provides insight into original understanding of the treason clause, that it was to guarantee nonviolent political controversy against suppression under the charge of treason or any other criminal charge based on its supposed subversive character, and that there was no constitutional authority to evade the restriction by creating new crimes under other names. Although this intent has since been established by First Amendment jurisprudence, the treason clause stands as a Tenth Amendment protection of the same right, restricting all organs of government, not just the legislative branch.
Prior to 1947, most of the precedents of cases that were successfully prosecuted were state trials for treason, most 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.
Following the 1861-65 War of Secession some wanted to try southern secessionists for treason, and former Confederate President Jefferson Davis was charged with treason in U.S. v. Jefferson Davis, but the constitutional requirement in Art. III Sec. 2 Cl. 3 that an offender be tried in the state and district where the offense was committed would have meant trying him in Virginia, where a conviction was unlikely, so the case was dismissed. Although the United States Government regarded the activities of the Confederate States as a levying of war, the President by the Amnesty Proclamation of December 25, 1868, pardoned all those who had participated on the southern side.
Since the Bollman case, the few treason cases which have reached the Supreme Court were outgrowths of World War II and charged adherence to enemies of the United States and the giving of aid and comfort. In the first of these, Cramer v. United States, the issue was whether the "overt act" had to be "openly manifest treason" or whether it was enough if, when supported by the proper evidence, it showed the required treasonable intention. The Court in a five to four opinion by Justice Jackson took the former view, holding that "the two witness principle" barred "imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness,"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".
The Supreme Court sustained a conviction of treason, for the first time in its history, in 1947 in Haupt v. United States. Here it was held that although the overt acts relied upon to support the charge of treason defendant's harboring and sheltering in his home his son who was an enemy spy and saboteur, assisting him in purchasing an automobile, and in obtaining employment in a defense plant were all acts which a father would naturally perform for a son, this fact did not necessarily relieve them of the treasonable purpose of giving aid and comfort to the enemy.
In Kawakita v. United States, petitioner originally was a native-born citizen of the United States and also a national of Japan by reason of Japanese parentage and law. While a minor, he took the oath of allegiance to the United States; went to Japan for a visit on an American passport; and was prevented by the outbreak of war from returning to this country. During the war, he reached his majority in Japan; changed his registration from American to Japanese, showed sympathy with Japan and hostility to the United States; served as a civilian employee of a private corporation producing war materials for Japan; and brutally abused American prisoners of war who were forced to work there. After Japan's surrender, he registered as an American citizen; swore that he was an American citizen and had not done various acts amounting to expatriation; and returned to this country on an American passport. The question whether, on this record, Kawakita had intended to renounce American citizenship, said the Court, in sustaining conviction, was peculiarly one for the jury and their verdict that he had not so intended was based on sufficient evidence. An American citizen, it continued, owes allegiance to the United States wherever he may reside, and dual nationality does not alter the situation. This case is notable for extending U.S. criminal jurisdiction to the actions of U.S. civilian citizens abroad, which would have originally been considered unconstitutional.
World War II was followed by the Cold War, which resulted in political prosecutions of several persons for treason and other charges on dubious evidence. The trials of the Axis broadcasters - Douglas Chandler, Robert H.Best, "Axis Sally", Iva Ikuko Toguri d'Aquino as "Tokyo Rose", and indictment and mental commitment of Ezra Pound - for actions which provided no significant aid or comfort to an enemy, and were not committed within the territorial jurisdiction of the United States, muddied the jurisprudence of the treason clause.
In U.S. v. Rosenberg, the court held 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 was held to be applicable. However, no constitutional authority for the Act itself was proven.
1. Founder and President of the Constitution Society, http://www.constitution.org
2. J. Willard Hurst, The Law of Treason in the United States Selected Essays (Westport, Conn.: 1971). Online at http://www.constitution.org/cmt/jwh/jwh_treason.htm.
3. Art. III Sec. 3.
4. 5 J. Elliot, Debates in the Several State Conventions on Adoption of the Constitution (Philadelphia: 1836), 469 (James Wilson). (Madison's Notes on the Debates in the Federal Convention)
5. United States v. Burr, 4 Cr. (8 U.S.) 469 (1807).
6. Ex parte Bollman, 4 Cr. (8 U.S.) 75 (1807).
7. Annals of Congress, Tenth Congress, First Session, Senate, Debate on Treason and other crimes, 1808, Feb 11, 24, Mar 1; Annals 17:108-27, 135-49, 159-50
8. Wharton's State Trials of the United States (Philadelphia, 1849), and Lawson's American State Trials (17 volumes, St. Louis, 1914-1926), trials of Thomas Wilson Dorr (1844) and of John Brown (1859).
9. Cramer v. United States, 325 U.S. 1 (1945).
10. Haupt v. United States, 330 U.S. 631 (1947).
11. Kawakita v. United States, 343 U.S. 717 (1952).
12. United States v. Rosenberg, 195 F.2d 583 (2d. Cir.), cert den., 344 U.S. 889 (1952).
Bradley Chapin, The American Law of Treason: Revolutionary and Early National Origins (University of Washington Press. Seattle: 1964).
Stanley I. Kutler, The American Inquisition: Justice and Injustice in the Cold War (Hill & Wang, New York: 1982.
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Maintained: Jon Roland of the Constitution Society
Original date: 2002 January 2 —