Treason and the Constitution

(a) General Policy: A Restrictive Definition

Grievances over oppressive prosecutions for treason or other offenses did not form one of the causes which brought the Federal Convention together in 1787. But once the outlines of a really strong government were sketched, the political liberalism which marked this conservative body made it logical to consider necessary curbs upon abuse of the new power created. The basic policy of the treason clause written into the Constitution emerges from all the evidence available as a restrictive one. Everyone took for granted that, since a new sovereignty was being created, its authority must be given protection. The matter which dominated all references to the subject, however, was not the establishment of this protection, but its careful limitation to the minimum necessary to safeguard the community.

This restrictive emphasis stands out with special sharpness, because the story begins on a more positive note. In the summer of 1786 there were stirrings in the Continental Congress for amendments to strengthen the Articles of Confederation. On August 7, 1786, a committee named in July to report amendments brought forth several proposals, of which Charles Pinckney was apparently the principal author. Article 19 of these amendments proposed to grant to Congress the sole and exclusive power of defining and punishing treason.1 No limitations were suggested.

The other fact which provides background for the story of the treason clause occurred in the autumn of 1786 when mobs of western Massachusetts farmers, taking Daniel Shays for their leader, resorted to force to halt the debt proceedings and mortgage foreclosures against which they had so far fruitlessly sought legislative relief. Shays' Rebellion sent a shudder of shocked alarm through moderate and conservative elements in the country at large; the Continental Congress took secret measures to provide federal troops to support the energetic action of the Massachusetts executive and militia in successful suppression of the outbreak; and additional, powerful impetus was given the movement for creating a stronger central government. Records of the Continental Congress, of the Federal Convention and of the debate over ratification of the Constitution furnish ample evidence of how vividly the threat of Shays' Rebellion was in the minds of proponents of the new government. The adopted Constitution contained specific authorization for the central government to support or initiate action against further insurrection.2 With positive provision for the safety of the state thus to the fore in congressional proposals for changing the frame of government, and the example of Massachusetts strong in the minds of men looking for assurances of orderly and secure economic and social development, the limitations of the treason clause must reflect deeply held notions of individual security against official oppression.3

The positive emphasis is still apparent at the beginning of the Convention. The Pinckney plan for the new government, defining the powers of the federal legislature in terms obviously drawn from the 1786 proposals to the Continental Congress, provided 15. S. & H. D. in C. ass. shall institute Offices and appoint Officers for the Departments of for. Affairs, War, Treasury and Admiralty —

They shall have the exclusive Power of declaring what shall be Treason and Misp. of Treason agt. U. S.4

Hamilton's plan of government, apparently leaving the creation of treasonable offenses to general powers conferred on the central government, provided that the Executive should have power to pardon in cases of treason only with the approbation of the Senate. Both the Executive and Senate, holding office during good behavior, were a step removed from the electorate, which was to choose the Electors who would select Senators and a "Governour." It is not surprising that Hamilton's only reference to treason should seek to enforce a strong hand against disaffected persons.5

The first evidence of concern to set limits to the offense is in a draft of the "New Jersey Resolutions." Paterson's notebook includes a Resolution "that it is necessary to define what offences, committed in any State, shall be deemed high treason against the United States." This proposal is crossed out in Paterson's record book, and is not included in Madison's report of the New Jersey plan.6 In any event, its place in a body of "small state" resolutions suggests that delimitation of central government as compared to state authority, rather than protection of the individual, was the moving force; and this hypothesis is consistent with the lengthy discussion in the Convention over the relative boundaries of federal and state power over treason. On the policy of protecting the individual, there was no small state-large state division in the Convention, and, indeed, some of the most vigorous advocacy of limitations was by Virginia delegates.

Save for these references in papers laid before the Convention, there was no mention of treason until the Committee of Detail submitted its draft constitution to the Convention in August, 1787. The treason clause was the creation of this Committee. No specific instructions on the subject were included in the resolutions sent to the Committee, and its authority to deal with the matter must be derived from the omnibus resolution providing that the "national legislature" be empowered "to legislate in all cases to which the separate States are incompetent."7

In this, as in most other matters, we have little direct evidence of the deliberations of Ellsworth (Connecticut), Gorham (Massachusetts), Randolph (Virginia), Rutledge (South Carolina), and Wilson (Pennsylvania), in the Committee of Detail. What we have, however, marks the beginning of concentration on limiting the scope of the offense. A draft in Wilson's handwriting contains the simple authorization of the Pinckney plan, for Congress "to declare what shall be Treason against the United States," with the addition, in Rutledge's hand, of the limitation of the punishment, "not to work Corruption of Blood or Forfeit except during the Life of the Party." However, a document in the handwriting of Randolph (with each item checked or crossed out, indicating use of the paper in preparation of subsequent drafts), narrows the definition of legislative power to the authority "To declare it to be treason to levy war against, or adhere to the enemies of the U.S." And in the draft constitution reported by the Committee, August 6, 1787, Article VII, Section 2 provided that

treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them. The Legislature of the United States shall have power to declare the punishment of treason. No person shall be convicted of treason, unless on the testimony of two witnesses. No attainder of treason shall work corruption of blood nor forfeiture, except during the life of the person attainted.8

At one stroke, the basis of the restrictive policy had been laid: all authority is taken from any other agency to define the extent of the crime; the decision is taken that there shall be no analogy to the ancient offense of compassing the king's death; a stipulation on quantum of proof is given constitutional sanction. But, the language on adherence is not qualified by the traditional "aid or comfort" phrase, nor is there explicit recognition of the overt act as an element of the offense, and of course, therefore, no linking of the two-witness requirement to the overt act. Acts of treason against a state are made treason against the United States, a provision finally eliminated.

The treason clause was discussed at some length by the Convention, in Committee of the Whole, August 20, 1787, in a debate which serves to underline the framers' preoccupation with limiting the scope of the crime. This is apparent, in the first place, from the discussion of the general terms of the clause. Surprisingly, Madison opened the discussion with a plea for less restrictive language:

Mr. Madison thought the definition too narrow. It did not appear to go as far as the Stat. of Edwd. III. He did not see why more latitude might not be left to the Legislature. It wd. be as safe as in the hands of State legislatures; and it was inconvenient to bar a discretion which experience might enlighten, and which might be applied to good purposes as well as be abused.9

Mason, on the other hand, was in favor of following the language of the Statute of Edward III. That he believed the old terms were valuable to limit the definition of the crime is suggested by the fact that later in the discussion he moved to add to the clause concerning adherence to the enemy the familiar terms of aid and comfort — "as restrictive of 'adhering to their Enemies &c' — the latter he thought would be otherwise too indefinite — ." Further discussion over the extent to which the Committee of Detail had enlarged or narrowed the scope of the language of Edward III's statute shows that the old English law was at least prominently in the minds of the Convention.

In the midst of the debate concerning relative state and federal power to create the offense, King introduced the only note of skepticism as to the importance of limiting the definition of treason when he observed "that the controversy relating to Treason might be of less magnitude than was supposed; as the legislature might punish capitally under other names than Treason." Taken in its general implications, this was clearly not the view of Gouverneur Morris and Randolph, who moved to postpone further consideration of the suggested treason clause in order to take up a substitute which declared:

Whereas it is essential to the preservation of liberty to define precisely and exclusively what shall constitute the crime of Treason, it is therefore ordained, declared & established, that if a man do levy war agst. the U.S. within their territories, or be adherent to the enemies of the U. S. within the said territories, giving them aid and comfort within their territories or elsewhere, and thereof be provably attainted of open deed by the People of his condition, he shall be adjudged guilty of Treason.

Despite its preamble, this proposal seems less confining than that of the Committee of Detail; but it is clear that its proponents offered it out of a desire to set closer limits to the crime. Their motion was defeated, but before the day was out the two principal additions of the Morris-Randolph draft ("aid and comfort" and the requirement of an overt act) were inserted in the draft which lay before the Committee of the Whole.

In addition to the implications of such discussion of the general language used in the section, distrust of the possible scope of the offense is reflected particularly in the amendment made to the clause concerning adherence to enemies. There was initially some confusion over just what was broad, and what was narrow terminology here. Randolph introduced the subject by saying that he "thought the clause defective in adopting the words in adhering only. The British Stat: adds, 'giving them aid and comfort' which had a more extensive meaning." Ellsworth "considered the definition as the same in fact with that of the Statute," and, in replying to him, Gouverneur Morris reflected some confusion over the breadth of the terms involved, saying that "'adhering' does not go so far as 'giving aid and Comfort' or the latter words may be restrictive of 'adhering' ... in either case the Statute is not pursued." Wilson thought the words added no limitation: he held "'giving aid and comfort' to be explanatory, not operative words; and that it was better to omit them." Dickinson then objected from the viewpoint of one concerned to limit the definition: he thought "the addition of 'giving aid and comfort' unnecessary & improper; being too vague and extending too far." Dr. Johnson apparently felt the added words would limit, by explaining, the basic terms in the provision, since he "considered 'giving aid and comfort' as explanatory of 'adhering.'" Randolph and Morris then moved to consider the draft quoted above before considering the draft by the Committee of Detail. The restrictive purpose indicated by their proposed substitute seems rather inconsistent with their earlier indications that they regarded the "aid and comfort" phrase as possibly extending the area of the offense, for it was, nevertheless, employed in their own proposal. However, after all of this confusion, the final action of the day was taken on a clearly restrictive note.

Col. Mason moved to insert the words "giving (them) aid comfort". as restrictive of "adhering to their Enemies &c" — the latter he thought would be otherwise too indefinite — This motion was agreed to (Conn: Del: & Georgia only being in the Negative).

Mason was, therefore, consistent with his opinion, at the outset, in favor of "pursuing the Stat: of Edwd. III."

Finally, a fundamentally restrictive attitude also marks the treatment of the requirements of an overt act and of two witnesses to establish the offense. The draft by the Committee of Detail did not refer to the proof of an overt act. The Journal of August 20 notes that a motion was adopted to insert the words "some overt act of" at the beginning of the draft clause, so that the clause would read, "Treason against the United States shall consist only in some overt act of levying war against the United States, etc...." Subsequently, the Committee of the Whole inserted "to the same overt act" after "witnesses," and it was then voted to strike the reference to overt acts which had been placed at the beginning of the section. Curiously, Madison's "Notes" contain no direct reference to these various votes; but the inference seems fair that there was a definite intention to require the showing of an overt act as an independent element of the offense, and that the first insertion, which made this plain, was stricken probably for artistic reasons, after the reference to an overt act had been linked with the requirement of two witnesses.10

The interpretation of the proceedings is somewhat clouded by the fact that the final exchange of comment on the language involving "overt act" emphasized solely the strengthening of the evidentiary guaranty against perjury.

When it was moved to insert "to the same overt act" after the two-witness requirement, Madison notes that "Docr. Franklin wished this amendment to take place — prosecutions for treason were generally virulent; and perjury too easily made use of against innocence." And James Wilson observed that "much may be said on both sides. Treason may sometimes be practised in such a manner as to render proof extremely difficult — as in a traitorous correspondence with an Enemy." The vote was 8-3 in favor of inserting the overt-act phrase in connection with the requirement of two witnesses. Though this may seem to subordinate the overt-act phrase, the inference seems a fair one, from the record as a whole, that it was thought important to stipulate expressly that an overt act should constitute a distinct element of proof of the offense.

As much time was devoted on August 20 to discussing the problem of treason in the federal system — the extent to which the central government and the states might, respectively, undertake to define the offense — as was given to debate on all the other points considered. However, the debate on the general phrasing and elements of the offense, so far as it went, seems clearly to establish a general agreement on the wisdom of limiting the scope of the offense in all doubtful cases.11 The only respects in which the Convention may be said to have rejected opportunities to confine the scope of the offense were in rejecting the suggestions that the states be denied any authority to define treason against themselves, and that participation in a civil war, between a state and the nation, be excepted. The debate seems, however, to have turned on judgments of what would constitute an equitable and workable plan in this regard for a federal system; and to have involved no conscious departure from the policy of safeguarding the individual from oppressive extensions of the nature of "treason."12

The only member of the Convention of whose views we have any substantial evidence, apart from the record of the Convention discussion, is James Wilson. He is a key figure, however, as a member of the Committee of Detail, which took the responsibility for taking a restrictive rather than an extensive approach to the definition of the offense. The crisp statement and logical progression of the clause as it came from the Committee of Detail strongly suggests the hand of Wilson, probably the ablest lawyer on the committee.13 We have seen that Wilson had long been familiar with basic English materials on the law of treason. In 1778 he had joined the defense in the Pennsylvania treason trials when that was a highly unpopular thing to do, and had stoutly upheld the wisdom of avoiding the creation of novel treasons by staying close to the familiar terms of the Statute of Edward III. His participation in the Convention discussion of August 20 is not very illuminating, it is true. He was against inclusion of the "aid and comfort" phrase, significantly, however, on grounds of draftsmanship and not of policy. Regarding the two-witness requirements, he recognized the dangers of putting an impractical burden on the prosecution; but when the question was put to the vote, the Pennsylvania delegation was recorded as unanimous for the limitation. His papers contain an undated memorandum headed "Reasons for adopting the Constitution," and among the seventeen points which he thought significant enough to list was14

the accurate Description of Treason — its [one word and part of another crossed out: apparently "mild Puni," probably "mild Punishment"] Consequences confined to the Cri [Criminal?]; consid. Art. 3. s. 3./ Mont. 6. 12. c. 7. ss. 18. [apparently a reference to Montesquieu].

The inferences, that Wilson took particular interest in the treason clause, and that he believed its virtue lay in its fundamentally restrictive character, are borne out by his detailed praise of it in the Pennsylvania ratifying convention.

Twice, of his own motion, and without any criticism of the provision having been voiced by an alert and suspicious opposition, Wilson cited the clause as an ornament of the proposed Constitution.15 He placed such emphasis on the constitutional provision that he devoted an entire lecture to it in his law lectures delivered at the College of Philadelphia, in 1790 and 1791. He stressed as the whole point of his analysis the virtues of setting careful bounds to the crime:

It is the observation of the celebrated Montesquieu, that if the crime of treason be indeterminate, this alone is sufficient to make any government degenerate into arbitrary power.16

Praising as the most important part of the Statute of Edward III the provision that the Parliament, and not the judges, should pass on novel cases claimed to be treason, Wilson argued the superiority of American law in placing this restrictive principle beyond even legislative encroachment:

In this manner, the citizens of the Union are secured effectually from even legislative tyranny: and in this instance, as in many others, the happiest and most approved example of other times has not only been imitated, but excelled.17

Such continuing concentration on a clause which, whatever its merits, is certainly not one of the more conspicuously discussed parts of the Constitution, strongly suggests pride of authorship. At any rate, there can be no doubt as to the central conclusion of policy which Wilson would derive from the clause for the guidance of legislators and judges.

If we turn from the Philadelphia Convention and its members to the great debate which surged throughout the country over the ratification of the Constitution, the story is the same. The Constitution was everywhere under attack, because it contained no bill of rights, and created a strong government with broad powers, which the imagination of its opponents foresaw could be turned in many ways to destroy the liberties of the citizen. In this situation, it is of the highest significance that without material exception the treason clause was adduced only by proponents of the Constitution, as a prideful argument for the protection with which that document surrounded the individual; and that there was no real effort made at any time, so far as the record shows, to claim that the new government could oppress its people under the guise of prosecutions for treason.18

The closest approach to a clash over the treason clause in the state ratifying conventions took place in Virginia. Replying to a speech of Patrick Henry in which the spectre of "the most grievous oppressions" had been raised, George Nicholas took the initiative in citing the treason clause:

Treason consists in levying war against the United States, or in adhering to their enemies, giving them aid and comfort. The punishment of this well-defined crime is to be declared by Congress; no oppression, therefore, can arise on this ground. This security does away the objection that the most grievous oppressions might happen under color of punishing crimes against the general government. The limitation of the forfeiture to the life of the criminal is also an additional privilege.19

It is noteworthy that when the Virginia convention reached the treason section in its turn in a section-by-section discussion of the Constitution, the record shows no mention of the provision, though there had been a very lengthy argument over the preceding parts of Article III.

The fight in North Carolina was a particularly hot one, and concluded with a refusal either to ratify or reject the proposed Constitution, but rather a stipulation that North Carolina would ratify if certain rights were declared and ambiguous passages clarified. Since the opposition was alert to point out every aspect in which they saw the danger of political oppression of the individual under the new government, it is again significant that when the convention reached the treason clause in its section-by-section consideration of the document the record states merely, "3d section [Article III] read without any observation."

Subsequently, what began as apparent criticism of the treason clause ended in weak professions of mistaken meaning on the part of opposition leaders.20 In many states, advocates of the Constitution cited the treason clause as a valued part of the document, and the opposition maintained silence.21 The only respect in which the debates over ratification may be said to have suggested a broader concept of "treason" in consequence of the provisions of the Federal Constitution was the inference which might be drawn that any circumstances which would call into play the guaranty extended to every state of a republican form of government would probably involve treasonable conduct on the part of those threatening the state government. But at most this seems to involve no more than application of familiar precedents concerning the constructive levying of war.

(b) The Content of the Restrictive Definition

A close examination of the evidence makes it possible to suggest in certain respects a more precise statement of what the strict construction policy of the treason clause involves. In the first place, though the most obvious emphasis in discussion was upon limiting the power of the legislature to extend the scope of "treason," there can be no doubt that the restrictive policy was intended likewise to limit judges and to curb the creation of novel treasons by construction. This was certainly Wilson's intent. As defense counsel in the treason cases of 1778 he had strongly urged that courts should construe strictly the terms of treason statutes and take care not to extend the crimes there defined. In his December 7 speech to the Pennsylvania ratifying convention, he chose as an example of the perils of a loose extension of the offense one of the most cited instances of the "constructive" (i.e., judge-made) treasons of English law.22 In his law lectures, in 1790, he emphasized that the great advance made by the Statute of Edward III was to curb the power of the judges by reserving to Parliament the right to decide whether novel cases should be deemed treason, and his praise for the provision in the Constitution was that it improved the English situation by broadening the limitation to cover the legislature as well.23 There would seem significance in the fact that the Committee of Style shifted the treason clause out of Article I into Article III in the final shaping of the document; the matter of the scope of the offense had been so clearly taken from Congress that it was logical to place the remaining admonition of policy in the part of the document dealing with the courts, which must still administer the clause.24 In 1792, Mr. Justice Iredell, who had cited the treason clause in support of the Constitution in the North Carolina convention, viewed it as preventing the punishment of "constructive acts of treason."25

Though the restrictive policy was taken to limit judges as well as legislators, the treason clause used words of the Statute of Edward III upon which English judges had had much to say over centuries. Despite the condemnation of "constructive" treasons, in political polemics, it was also assumed that "levying war" or "adhering to enemies" would be construed in the light of previous application of these terms. Wilson, indeed, found in the judicial gloss upon the words of Edward III's statute one of the sources of protection against oppression. Though the Statute had been "like a rock, strong by nature," he noted that it had been "fortified, as successive occasions required, by the able and honest assistance of art" so as to stand "impregnable by all the rude and boisterous assaults, which have been made upon it, at different quarters, by ministers and by judges."26

It is quite evident, moreover — nor, in view of the prominence of Shays' Rebellion in the minds of the Constitution's proponents, is this surprising — that it was assumed that to some ill-defined extent the constructive levying of war would be covered by the treason clause.27 The evidence thus poses a most difficult problem, which it does not resolve. The omission from the constitutional clause of any provision analogous to that in English law which punished compassing the death of the king removed the foundation on which the English judges had built much of the reprobated structure of "constructive" treasons. It is a fair inference, in view of the vigor with which the restrictive policy of the Constitution emerges from the evidence, that it would violate that policy to import into our law English doctrine peculiarly based on the omitted clause of the Statute of Edward III. Even so, there were in English history ingenious constructions under those clauses of the Statute which the Constitution did adopt, and if the full gloss is to be taken with the clauses, the limiting value attributed to the use of the familiar words might be considerably depreciated. The problem is made the more difficult, because in England indictments often contained counts under both the charges of compassing the king's death and levying war against him, or adhering to his enemies; and broad rulings of the courts did not draw distinctions as to the relative scope of these different charges. All that can be said is that, so far as the contemporary materials are concerned, their weight is clearly in favor of resolving doubts on the side of precise definition of the offense. Obviously this is the point of Wilson's law lectures.28

It seems possible, finally, to cast some light on the particular type of oppression which the proponents of the treason clause feared under loose definitions of the offense. Aside from what may be implied in Dr. Franklin's reference to the "virulence" of prosecutions for treason as creating the danger of perjured evidence, the data suggest that the fear most in mind was of abuse of "treason" for the building or upholding of domestic political faction, rather than its vindictive use under wartime hysteria against "enemies." This is not the same thing as to draw a line between the offenses of levying war and adhering to enemies, and to apply a policy of strict construction only to the former. Though limited to wartime, the latter offense might obviously then be put to oppressive use against political foes or restless classes by the familiar technique of holding them to the "natural consequences" of their conduct.29

What is suggested is that the historic policy restrictive of the scope of "treason" under the Constitution was most consciously based on the fear of extension of the offense to penalize types of conduct familiar in the normal processes of the struggle for domestic political or economic power. The sale of provisions to an enemy in wartime, or the conveying of intelligence to him, or the proffer of counsel and assistance to his agents, are types of conduct quite distinct from activities of a sort to which political opponents or economic groups would normally resort in their efforts to influence public policy. There is less danger that charges of this type could, in view of the sharply defined character of the conduct in question, be used to suppress free competition for the power to direct the policies of the republic. It is not that the offense of adhering to enemies is, in toto, exempt from the restrictive policy of the Constitution, but that that policy was formed with attention directed at only certain types of the conduct which might constitute adherence.30

There is little that is helpful in developing this point in the Convention discussion. It is worth recalling, however, that when the proposal to require "two witnesses to the same overt act" was laid before the Committee of the Whole, following Franklin's expression of fear over the "virulence" of prosecutions for treason and the ease with which perjury was used against innocence, James Wilson commented that "much may be said on both sides. Treason may sometimes be practised in such a manner, as to render proof extremely difficult — as in a traitorous correspondence with an Enemy."31 Wilson apparently voted in favor of the more strict two-witness requirement, but this vote on the evidentiary safeguard does not necessarily limit the implications of his suggestion of a stronger hand in defining the offense of trafficking with the enemy. In the debate in the Pennsylvania ratifying convention, it is a reasonable implication that Wilson is concerned for suppression of essentially political conduct, when he exclaims: "Crimes against the state! and against the officers of the state! History informs us that more wrong may be done on this subject than on any other whatsoever."32 When he cited a case to illustrate the excesses of the English law of "constructive" treason, it was one in which the charge had been domestic disloyalty to the king, "compassing the death of the king." Moreover, he argued that there was no special reason to fear governmental oppression where the government did not have separate interests from the people — which would be the case as regards protection against actual dealings with the enemy — and then adduced the treason clause to show that "Whenever the general government can be a party against a citizen, the trial is guarded and secured in the Constitution itself." In this context, his caution that "if we have recourse to the history of the different governments that have hitherto subsisted, we shall find that a very great part of their tyranny over the people has arisen from the extension of the definition of treason" is properly read as aimed at cases where the government and people might have separate interests: i.e., where the real issue was the control of domestic power.33

The abuses which the pamphleteers believed defeated by the Constitution's treason clause seem most likely to have been the suppression of political opposition or the legitimate expression of views on the conduct of public policy. The danger pointed to by Madison in The Federalist was that "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."34 References in other discussions to the protection offered by the treason clause against the "avarice and rapacity of government," to its "truly republican" character and its "pre-eminence in the scale of political security" likewise imply primary attention to the use of the offense against normal activities of political opposition and opinion.35

In 1808, Rufus King, who had figured prominently in the work of the Federal Convention, wrote to Pickering commenting on the bill introduced by Senator Giles to correct the gaps in the law which, it was conceived, had permitted Burr to escape conviction. King's remarks are, of course, prompted by his ardent anti-Jeffersonian position, but his opinion of the history of the policy informing the treason clause so tallies with the contemporary evidence as to deserve note:

The limitation which the Constitution establishes on the subject of Treason, proceeded from a principle, which will readily be approved by every man who is acquainted with the vindictive spirit that, at different times in the History of England, has animated the ascendant faction against their political adversaries. If the proposed law on the subject of Treason neither enlarges nor lessens its constitutional definition, the law is unnecessary; if it does the one or the other, it is unconstitutional. In the unfortunate periods, during which a country is torn by contending factions, the Treason Laws should not be altered. Neither ought they to be changed just at the time when the Govt. is angry or disappointed in the failure to convict such as are believed to have committed Treason....36

The materials for the period of the Constitution cast little light on detailed problems of the elements of treason. Aside from the references to the Statute of Edward III, there is no mention in the Convention's discussion of the idea that use of the word "treason" of itself imported any particular doctrines, though obviously it was used to express the central concept of betrayal of allegiance. The idea of "allegiance" itself receives no exposition, however. "Treason" also bears the implication that a specific intent to betray must be shown, and, though there is no direct evidence on the point, the whole emphasis on a policy of strict construction in defining the offense reinforces the normal implication of the language.

Though the constitutional provision is phrased somewhat backhandedly on the point, it is clear from the development of the section that the overt act is intended as a distinct element of proof of the offense in addition to intent. This would seem at least clearly to rule out treason prosecutions for the mere holding of dissident opinions.37 An effort, by violence, to resist the general execution of the laws, however, would apparently be viewed by the proponents of the treason clause as sufficient to make out a levying of war.38 "Traitorous" correspondence with the enemy would establish adherence to him.39 Beyond these scant items, the constitutional record gives us no specific help.

The sequence of amendments by which the evidentiary clause was strengthened clearly shows a strongly felt policy to be involved. What that policy aimed at seems quite simple. Franklin feared that the government would procure perjured witnesses, and evidently felt that the requirement as written would make this task more difficult. This explanation was the accepted basis of the clause. If any more specific history explains the reason for placing the evidentiary requirement in the Constitution, there seems no evidence of it.

In the Act of April 30, 1790,40 Congress substantially restated the language of the constitutional provision and, exercising its power to fix the penalty, decreed death. There is no record of any discussion concerning this first federal treason statute which casts light on contemporary views of the constitutional provision.41 Contemporary treatises drew their statements on the specific incidents of treason from English decisions and the early 19th century American decisions, but found no further enlightenment in the constitutional materials. All emphasize, however, the fundamentally restrictive policy represented in the constitutional provision.42

(c) The Treason Clause as a Limitation on Governmental Power

If certain conduct is not within the scope of the constitutional definition, either because it is not treason under any historic definition, or because it is one of the historic branches of the crime which the framers omitted from their delimitation, does this mean simply that the actor may not be indicted for treason as such, though his conduct may subject him to another charge; or does it mean that he may not be charged with any offense, the gravamen of which is the allegedly subversive character of that conduct? Does the treason clause merely define a particular crime, or does it express a policy exempting certain types of activity from the risk of criminal prosecution?

Obviously, the clause is at least an exclusive definition of a crime called "treason," forbidding any agency of government from increasing the categories of conduct which may be prosecuted under that name.43 Nor may the scope of the offense be extended by including under the heads of adherence to enemies or levying of war conduct lacking historic elements of those crimes, or by taking a "liberal" view of the evidence deemed relevant to establish the elements of such treasons.44 Legislation purporting to declare that particular situations constitute levying of war, or adherence to enemies, would probably be unconstitutional. The treason clause pointedly restricts congressional authority to the determination of penalties for the crime, and its position in Article III underlines the implication that problems of application are solely for the courts.45 But this may, in the last analysis, be a matter of form, since under its broad power to fix penalties, Congress could hardly be denied the right to set different grades of punishment and, necessarily, to specify the varieties of treasonable conduct to which the respective penalties should apply.46

Some dicta assert that the scope of treason as defined by the Constitution may not be "diminished," any more than it can be expanded.47 What this means is not specified. Perhaps it means that the Congress could not bar the prosecution of alleged traitors by legislation purporting to legalize conduct treasonable under the constitutional definition. Perhaps it is meant to assert that Congress may not reduce treasonable conduct to the grade of a misdemeanor.48 Neither proposition seems to have much substance in view of the grant to Congress of the power "to declare the Punishment of Treason," limited only against severity and not against lenience by the prohibition on "Corruption of Blood or Forfeiture except during the Life of the Person attainted."49 Likewise, the unrestricted pardon power of the President would seem to negative an interpretation limiting executive authority to "diminish" the crime. Indeed, the Philadelphia Convention rejected a proposal to require congressional concurrence in presidential pardons in treason cases.50

One sense in which the scope of the constitutional definition should not be capable of being "diminished" is with respect to the requirement that there be "the Testimony of two Witnesses to the same overt Act." Though the record of the Philadelphia Convention contains but a brief reference to the insertion of this stringent requirement, it is enough to show that this provision was insisted on out of a highly practical view of the dangers of political abuse of treason prosecutions.51 Judges have carefully sought to give the provision full substance in trials for treason.52

On the other hand, where the defendant is charged with conduct involving all the elements of treason within the constitutional definition, and the gravamen of the accusation against him is an effort to subvert the government, or aid its enemies, it would seem in disregard of the policy of the Constitution to permit him to be tried under another charge than "treason." However, the decision in Ex parte Quirin53 casts considerable doubt on the validity of this analysis. One of the saboteurs landed on the eastern coast of the United States from German submarines in the spring of 1942 was an American citizen. The Supreme Court considered and rejected the argument that he must be prosecuted for treason, and not for an offense against the laws of war. The Court's analysis went not to the historic scope of military jurisdiction (which might be deemed to limit the general application of civil process), but to the scope of the crime of treason:

The argument leaves out of account the nature of the offense which the Government charges and which the Act of Congress, by incorporating the law of war, punishes. It is that each petitioner, in circumstances which gave him the status of an enemy belligerent, passed our military and naval lines and defenses or went behind those lines, in civilian dress and with hostile purpose. The offense was complete when with that purpose they entered — or, having so entered, they remained upon — our territory in time of war without uniform or other appropriate means of identification. For that reason, even when committed by a citizen, the offense is distinct from the crime of treason defined in Article III, s. 3 of the Constitution, since the absence of uniform essential to one is irrelevant to the other. Cf. Morgan v. Devine, 237 U. S. 632; Albrecht v. United States, 273 U. S. 1, 11-12.54

The decisions cited as analogies by the Court are the now standard authorities holding that the double jeopardy clause of the Constitution is not violated by conviction for two or more offenses which are in substance part of the same criminal transaction, but which involve different elements in the allegation.55 It is not a convincing technique of interpretation to apply to a constitutional guaranty having its own history of policy a formal test developed under a different clause of the Constitution, with no demonstration that the policies behind the respective clauses are so similar as to be fulfilled by the same criterion. The double jeopardy clause is historically a guaranty against abuse of the law enforcement machinery as such, without reference to abuses peculiar to any one of the major types of crime. When the Constitution singles out the offense of treason as subject to special abuse, citation of a highly technical rule developed by judicial construction out of the general guaranty is in itself little evidence that the peculiar dangers against which the special guaranty was erected have been avoided.56 Though the type of offense charged against the American citizen in the saboteur group is a very clear case of treason, it is also within the category of charge the abuse of which was feared by the framers. The "absence of uniform" noted as the essentially distinct element of the offense under the law of war made the defendant's conduct more dangerous simply because it enabled him to appear as what he was — one of the body of citizens. And it was citizens that the limitations of the treason clause were intended to protect.

There are respects in which the treason clause might have practical meaning as a restriction on official agencies, even if it does no more than limit the kinds of conduct which may be prosecuted under the name of treason. The barbarous or oppressive penalties which were once a distinguishing mark of the crime have been abolished, but treason is still a capital crime; and thus it may be of consequence whether the prosecutor can make out a case under that heading, or is restricted to a lesser penalty under another charge. This is likely to be a consideration only in most unusual cases, however; the history has been one of decreasing penalties, not simply as a matter of humane policy, but because juries are reluctant to convict on a capital charge.57 There is the possibility that Congress might be restrained by the constitutional ban on cruel or unusual punishments from imposing the highest penalties for certain conduct, unless it were held to mount to the level of treason.58

A more tangible reason why it may be more than a matter of words whether an indictment charges treason rather than another crime is the peculiar intimidation and stigma carried by the mere accusation of treason. Federalist treason prosecutions arising out of the Whiskey Rebellion and designed to tar the "Democratic clubs" with the imputation of treason; Democratic accusations of treason against the Hartford Convention, which helped make that venture the last blow to the tottering Federalist party structure; the effort to employ treason prosecutions to make examples against widespread opposition to the Jeffersonian Embargo and the Fugitive Slave Law; the use of treason indictments against leaders of the Homestead Strike to break rank and file morale — all show that American history is not without demonstrations of the use of the treason charge as an instrument to turn public opinion and promote fear and loss of confidence among the opposition.59 Apart from such considerations, which give "treason" a separate significance even though a defendant's conduct may be punishable under some other head, it may of course be that the defendant will not be subject to any criminal liability at all, if his case cannot be fitted within the bounds of "treason." This may be true at any given time because of a gap in the statutes.60 And there might be cases in which whether legislative proscription of certain conduct could be justified, unless treason was involved, would present a substantial issue under the due process clause; for that offense may involve conduct which is commonplace and legitimate except as it is linked with a treasonable design.61

These are more or less plausible reasons why, as an exclusive definition of a particular crime, the treason clause may have more than merely taxonomic significance. But the treason clause is the product of history and not of analytical jurisprudence. There is some evidence that the characteristic severity of the punishment for treason has furnished a ground for the desire for a careful definition.62 And it is plain that in 1787 men appreciated the potentialities of "treason" as a political epithet.63 But among the suggestions which may be advanced to explain the practical significance of the clause as an exclusive definition of a particular crime, these alone have any definite link to the historical record, and that not well-defined. The highly practical concern of the Philadelphia Convention over the careful framing of the treason clause, however, and the pride with which proponents of the Constitution subsequently pointed to this item of the framers' handiwork as in substance a part of an American "Bill of Rights," imply a belief that more was being done than to state what might be prosecuted under the label of "treason."

On the face of the clause, it might be argued that "treason" is a generic term for efforts to subvert the government, and that therefore there can be no crimes, the gravamen of which is such a subversive intent, outside the bounds of the constitutional definition.64 Both in its general usage and in English legal history, "treason" has at one time or another embraced about everything which could fairly be called subversive activity, and a good deal that could not be.65 But this is not necessarily to say that subversive conduct was not also covered by other heads of the criminal law; and in fact there seems to have been no period after the Statute of Edward III when English law did not include offenses separate from treason though in substance dealing with what was, at least at the time, regarded as seditious activity or belief.66 The term is broadly inclusive, but not necessarily exclusive, in itself. Nor did the term acquire such an exclusive meaning in American colonial or state statute books prior to 1787, for these abound with penalties for activity obviously punished because deemed of a subversive nature, but not denominated "treason."67 There is no evidence that the word was used in the Constitution with intent to exclude the creation of all possible varieties and degrees of subversive crime except the levying of war and adherence to enemies.68

The Act of April 30, 1790, "for the Punishment of certain Crimes against the United States," would imply a contrary construction, since in addition to restating the constitutionally defined crime of treason and declaring the death penalty therefor, it defined and punished the offenses of misprision of treason; "piracy" in the form of the commission by any citizen of "any act of hostility against the United States ... upon the high sea, under colour of any commission from any foreign prince, or state," or being accessory to such piracy, before or after the fact, or confederating with pirates; and rescue by force of any person committed for or found guilty of treason.69 In the lengthy, hard-fought debates over the Sedition Act of July 14, 1798, none of the Act's opponents seems to have argued that the treason clause barred the creation of any new crimes aimed at subversive conduct; and in fact they conceded the validity of the first section of the Act, which punished conspiracies to oppose the laws of the United States and attempts to raise forcible resistance to them.70 There is, thus, some support in history for the result if not for all of the rationalization in Marshall's dictum in Ex parte Bollman, 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. The wisdom of the legislature is competent to provide for the case; and the framers of our constitution, who not only defined and limited the crime, but with jealous circumspection attempted to protect their limitation by providing that no person should be convicted of it, unless on the testimony of two witnesses to the same overt act, or on confession in open court, must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation. It is, therefore, more safe as well as more consonant to the principles of our constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the constitutional definition, should receive such punishment as the legislature in its wisdom may provide.71

But the 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.72

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.73 Resort to treason trials as a weapon of political combat was the abuse; the judicial technique was that of "inferring an intention to kill from overt acts which were only remotely connected, if they were connected at all, with a formed intention to kill the king" — in short, "constructive treason."74 As Holdsworth's description implies, this had involved more than devitalizing the mental element of the crime, by raising a treasonable intent upon tenuous innuendos. The process had also involved the emasculation of the overt act requirement of the Statute of Edward III, for, if "treason" were to be used effectively to suppress political opposition, it could not be limited to the relatively rare cases of resort to violence or the imminent threat thereof. It must be extended to cover the expression and advocacy of beliefs and ideas, and at the high point of this process it was in fact extended to punish the possession of an unpublished writing.75

In the great English treatises from which American lawyers took their knowledge and ideas of the English law, the outstanding note of political liberalism in the discussion of treason was the detailed condemnation of the doctrine that "mere" spoken or written expression of ideas, not amounting to a direct persuasion or consulting to kill the king, could constitute the crime.76 It is true that the same treatises contain uncritical expositions of the law of criminal libel as it stood in the full, vague sweep of the 17th century decisions.77

The 18th century in England, however, saw the great court struggles, led by Erskine, to limit the practical scope of criminal libel; and, though this battle did not reach its successful climax until shortly after the adoption of the United States Constitution (in Fox's Libel Act, 1792), the evidence is that "in the years before the First Amendment freedom of speech was conceived as giving a wide and genuine protection for all sorts of discussion of public matters."78

Against this total background, it is significant that the fear of factional abuse of treason trials, and reprobation of "constructive treason," are the most consistently and clearly expressed grounds of policy in contemporary discussion of the treason clause.79 They continue to dominate the courts' exposition of the policies determining the scope of levying war and adhering to enemies.80 The object of these abuses had been primarily the suppression of peaceful political activity. Plainly Article III, Section 3 was viewed as completely barring prosecutions of such conduct as "treason," and such has been the opinion of the courts.81

But the terms in which the treason clause was praised by proponents of the Constitution imply that it has the more fundamental effect of protecting nonviolent political activity from any suppression by resort to criminal prosecutions. Indeed, it would be hard to believe that Madison, the author of the First Amendment and of the Report on the Virginia Resolutions in opposition to the Sedition Act of 1798, would have agreed that the expression of ideas might be criminally punished, if only the label were shifted from "treason" ("compassing the death of the king") to some other tag.82

The mention of Madison, however, naturally suggests the question why the First Amendment was thought necessary, if peaceful political contest was understood to be protected by the restrictive implications of the treason clause. It must be remembered that the evidence suggests only that Section 3 of Article III was thought of as a political guaranty, whereas the tradition expressed in the First Amendment is a much broader one.83 It must be remembered, also, that the Bill of Rights was added to the Constitution out of an abundance of caution, as a concession to the substantial opposition in many of the ratifying conventions based on fear of the implications that might lurk in the new document. The freedom of political criticism was a prominent concern of this opposition. Proponents of the Constitution uniformly insisted that a bill of rights was unnecessary in a government wholly of delegated powers.84 Even in the absence of direct evidence, it would be fair to infer from their proud citations of the treason clause as a guaranty of individual liberty, that they would claim that provision as a general safeguard against abusive prosecutions. The claim was in fact made in both the Virginia and the North Carolina conventions, which were the scenes of two of the hottest fights over ratification. In the former, Patrick Henry voiced fears of the use of other charges than treason to suppress political criticism, and George Nicholas, citing the careful definition of treason, declared that, "This security does away the objection that the most grievous oppressions might happen under color of punishing crimes against the general government."85

The issue of free speech was made still more explicit, however, in the North Carolina convention. Lenoir had expressed the fear that, exercising its supreme power in its "ten miles square" citadel, the new government would arbitrarily suppress its critics, and Spaight, in reply, had pointed to the exclusive definition of treason. At this point, the record notes, "Mr. Lenoir rose, and said he meant misprision of treason," — i.e., a distinct, if related crime. Spaight answered, shortly, that "The same reasons hold against that, too...."86

The narrow view taken in these debates regarding the powers of Congress in the field of criminal legislation — i.e., that Congress could not punish any crimes other than those it was specifically authorized to punish — has not prevailed in the evolution of the Constitution.87 And it may be argued that in these discussions it was this forsaken theory of the general limits of federal power, rather than any broadly restrictive force of the treason clause, which was claimed as the guaranty against political prosecutions. The aspect of this argument, however, which deprives it of winning conviction, is that it is actually no more than the contention which was advanced against the necessity of the First Amendment, or any other parts of the Bill of Rights. As Hartley suggested in Pennsylvania, the treason clause, like the stipulations regarding habeas corpus and trial by jury in criminal cases, may have been inserted out of an abundance of caution, because of the fundamental character of the issues involved.88 This fact itself would urge caution in construing away any of the substantial effect which the obviously restrictive policy of the clause might fairly be given. Certainly the rather abstract question, whether the First Amendment merely declares limitations implicit in the theory on which the federal government was created, or imposes additional restrictions on its powers, did not affect the practical significance of that guaranty in the minds of its proponents, nor has it had apparent effect upon later developments under the Amendment.89

A further implication concerning the restrictive scope of the treason clause arises from the history of that provision of the Constitution which, as finally adopted in Article IV, Section 4, provides that "The United States shall guarantee to every State in this Union a Republican Form of Government...." This provision is obviously closely related in function to the treason clause, being in effect a stipulation for executive action, as the latter regulates judicial prosecutions, against certain subversive attempts.90 Significantly, the discussion of the guaranty clause at the Philadelphia Convention shows that its phrasing was reworked in order to make clear the framers' intention that, in effect, only a threat amounting to treason should suffice to bring the guaranty into operation. At one stage, it was proposed that the guaranty read: "That a Republican Constitution and its existing laws ought to be guaranteed to each State by the U. States."91 Gouverneur Morris objected: he was very unwilling that some existing laws be guaranteed. Wilson replied that "The object is merely to secure the States agst dangerous commotions, insurrections and rebellions." Mason, Randolph, and Gorham spoke further in support of the suggested provision, but all emphasized that the policy involved was directed against violent efforts to overturn state governments, which would inevitably imperil the new nation itself.92 Wilson finally moved the form of words adopted, and before this approving vote Houston again emphasized the objection to the broad scope of the original phrasing, observing that it would be unwise to guarantee perpetuation of existing constitutions, some of which he thought needed change.93 It seems plain that the terms of the guaranty clause were changed in order to exclude interference thereunder with peaceful political processes, subject perhaps to the one limitation — if it is such — that even by peaceful means no state might adopt a monarchical or other fundamentally nonrepublican form of government.94 The history of the guaranty clause thus suggests the scope of the policy probably represented also by the stringent limitations of the closely related treason section.

Doubt may be cast on the validity of this interpretation of the treason clause as a general prohibition of the penalizing of peaceful political activity, by the relatively minor role which the clause played in the attacks on the Sedition Act of 1798.95 Attack was centered on that section which declared any speech or writing against the President or Congress "with the intent to defame" or to bring them "into contempt or disrepute" a misdemeanor, punishable by fine or imprisonment.96 It is not especially surprising that the Republicans relied mainly on the First Amendment as the expression of the constitutional policy deemed violated by the Sedition Act. It is the most explicit statement of that policy, and it carried a great moral weight, since its adoption had been an important practical condition of the ratification of the Constitution. It is probably not unimportant that the First Amendment represented a principle particularly dear to both of the chief behind-scenes managers of the opposition — to Madison, its author, and to Jefferson, draftsman of the Virginia Act for establishing religious freedom. The treason clause for some reason failed to strike Madison's imagination in the Philadelphia Convention, though he subsequently advanced it in praise of the Constitution, in The Federalist.97

The treason clause was, however, introduced into the debate in a manner somewhat similar to that in the discussions over ratifying the Constitution. The Federal Government was wholly one of delegated powers; the only fields of federal criminal legislation were those specified; one of these was treason, which, Albert Gallatin pointed out in the House, "they had a right to punish, but not to define, it being expressly defined by the Constitution itself."98 But such references do not carry the connotation of those remarks in the ratification debate which suggest that the treason clause was viewed as summing up the law pertaining to subversive activities against the Federal Government. The treason clause was not thus relied on in the arguments of the Virginia or Kentucky Resolutions, nor in Madison's detailed report to the Virginia House of Delegates on the communications from other states regarding the Virginia Resolutions."

But the restrictive potentialities of the treason clause did not pass wholly without mention in the great debate over the Sedition Act, and this reference is of weight, for the speaker is "the intellectual leader of the young Republicans," John Taylor of Caroline. 100 In the debate in the Virginia House of Delegates, Lee pointed out that the Virginia Convention, which framed the first state constitution containing a guaranty of free speech, had found it not inconsistent also to enact the Ordinance of 1776 which imposed a fine up to £20,000, or imprisonment up to five years, for any resident who should "by any word, open deed, or act, advisedly and willingly maintain and defend the authority, jurisdiction, or power of the King or Parliament of Great Britain," or who should "maliciously and advisedly endeavor to excite the people to resist the government of the Commonwealth as by law established, or persuade them to return to a dependence upon the crown of Great Britain."101 Taylor saw the answer to this alleged legislative construction of the scope of free speech in the restrictive effect of the treason clause of the Federal Constitution:

The [Virginia] law evidently considers sedition as but one species constituting that genus called treason, which was made up of many parts. It therefore accurately expresses the idea of Virginia of the word "treason"; and shows how she understood it, as used in the Constitution. By that treason is limited to two items, with the punishment of which only the General Government is intrusted. Hence it was evident that Virginia could not have conceived that Congress could proceed constitutionally to that species of treason called sedition; and if this was not the true construction, what security was derived from the restriction in the Constitution relative to treason? Congress might designate the acts there specified by that term, and they might apply other terms to all other acts, from correcting which that clause of the Constitution intended to prohibit them; by doing which, as in the case of sedition, they might go on to erect a code of laws to punish acts heretofore called treasonable, under other names, by fine, confiscation, banishment, or imprisonment, until social intercourse shall be hunted by informers out of our country; and yet all might be said to be constitutionally done, if principles could be evaded by words.102

Several years later, replying to John Adams' attempt to justify the punishing of seditious libels on the President, Taylor further indicated his conception of the treason clause as a general guaranty against the use of criminal prosecutions to curb free discussion of public matters, and of the First Amendment as in this aspect a cumulative protection, added out of abundance of caution:

The opinions in several state constitutions, in favour of mental emancipation, being so construed as to expose mind to legislative fetters, the good sense of mankind had in this, as in many other instances, preceded precept in exploding errour. Political prosecutions for opinion had become as obsolete as those for witchcraft, before the general constitution obeyed public opinion, by declaring their inconsistency with free government; and before the sedition law endeavoured to drive political science into a retrocession of centuries, for the sake of reviving them.

The third section of the third article of the general constitution had been deeply rooted in the natural right of free utterance, before the publick solicitude required its farther security by the first amendment. The utterance of any opinions could not constitute treason. Irreverence expressed for our constitution and government; falsehood or reasoning to bring them into contempt and overturn them; were not thought politically criminal. Instead of being condemned to punishment, they are shielded against prosecution....103

For all practical purposes, the issue of the treason clause as a guaranty of free speech and political processes was not mooted after the Sedition Act controversy until similar questions were made acute by legislation during and immediately after the First World War.104 In Frohwerk v. United States,105 a prosecution based on the publication in a German-language newspaper in Missouri of several articles on the constitutionality and merits of the draft and the war objectives of the United States, the defense raised the treason clause as one basis for the claim of the unconstitutionality of the Espionage Act of June 15, 1917. Mr. Justice Holmes, speaking for a unanimous Court, stated the essence of the defense contention and disposed of it with a curtness which does not do justice to its merits:

Some reference was made in the proceedings and in argument to the provision in the Constitution concerning treason, and it was suggested on the one hand that some of the matters dealt with in the Act of 1917 were treasonable and punishable as treason or not at all, and on the other that the acts complained of not being treason could not be punished. These suggestions seem to us to need no more than to be stated.106

If, on the one hand, certain conduct amounts to treason, Mr. Justice Holmes does not explain why the two-witness requirement of Article III, Section 3 is not violated if the crime may be prosecuted apart from the treason clause merely by giving it another name.107 Where, on the other hand, the conduct in question consists of the expression of ideas, or even the advocacy of action, concerning the wisdom of public policies, an a priori assertion does not answer the implications of the history heretofore examined. The most likely reason for the inadequate treatment of the treason clause issue in the Frohwerk opinion is the totally inadequate presentation of it in the briefs, for neither side presented any data to the Court.108 That an adequate presentation of the issue might have elicited a much different appraisal of its merits is suggested by subsequent comment of Mr. Justice Brandeis, dissenting in Schaefer v. United States,109 a prosecution under the first Espionage Act for utterances on which an unsuccessful treason trial had already been based:

To prosecute men for such publications reminds of the days when men were hanged for constructive treason. And, indeed, the jury may well have believed from the charge that the Espionage Act had in effect restored the crime of constructive treason.110

Mr. Justice Holmes concurred in this dissent. The treason clauses of the federal and state constitutions were raised unsuccessfully as a constitutional defense against other prosecutions for utterances, brought both under the federal Espionage Acts and the state "criminal syndicalism" legislation which flourished in the early '20's. No decision discusses the historic basis for the claim, nor does any opinion offer convincing argument against it. The California court, of course, misunderstood the elementary history of the treason clause when it said that the definitions of the federal and state constitutions are merely for the purpose of limiting the number of offenses which can be punishable as treason under the common law, and in no wise limit the power of the legislature to provide for the punishment of acts inimical to the public welfare which theretofore might have been punished as constructive treason.111

The most reasoned opinion is that of the Sixth Circuit Court of Appeals, in Wimmer v. United States,112 a conviction under the second Espionage Act for utterances charged as supporting or favoring the cause of a country at war with the United States. The court said,

... Wimmer's first position is that the act is unconstitutional, because it punishes treasonable conduct, without proof of the overt act and without the two witnesses thereto required by the Constitution. As we understand the argument, it is, in substance, that adhering to and giving aid and comfort to the enemy is treason, according to the constitutional definition; that to support the cause of the enemy, or oppose that of the United States, against the prohibition of the Espionage Act, is adhering to and giving aid and comfort to the enemy, and is therefore treason; and hence that it cannot be punished unless shown by the degree of proof required by the Constitution....

If we had to do with a case where the conduct which was prosecuted consisted of acts, we would have to consider the line of reasoning upon which Wimmer depends. That Congress has power to take hold of an act which is, in fact, treason, and to say that it shall be severely punished, without the proof which is required to establish treason, and to justify this result because the conduct is given another name, is a proposition which we have no occasion to affirm or deny. Here the only conduct alleged or proved, as making out the offense, consisted of oral statements — words only. It is well settled that one cannot, by mere words, be guilty of treason.... and thus the fallacy of Wimmer's contention becomes apparent. It is a mistake to say that the intent is the thing which makes the treason, and that where the disloyal intent is there treason is. The requirement that there shall be two witnesses is purely evidential, but when the requirement is extended to proof of the overt act, it becomes clear that there must be an overt act to constitute the crime, and the act is incorporated into the definition. Thus we find, in the constitutionally defined crime, two elements, the intent and the act; neither is dominant. Intent minus act is not treason, any more than act minus intent is. Since it was declared by Chief Justice Marshall in the Bollman Case, 4 Cranch, 75, 2 L. Ed. 554, it has never been doubted that Congress may punish, under the ordinary rules of prosecution and without trenching upon the constitutional limitation as to treason, acts which are of a seditious nature and tend toward treason, but which are not of the direct character and superdangerous degree which would meet the constitutional test and make them treason; and even more must this be true of words.

Further distinction is found in the very words of the constitutional definition. Treason is "adhering to their enemies, giving them aid and comfort." Both adherence and giving aid are necessary. To "favor or support" is, very likely, to "adhere"; but it does not carry the idea of giving aid and comfort, unless by a rather remote implication. Hence it may well be said that adherence by words only is an offense quite distinct from treason.113

The true depth of the issue raised by the treason clause was not seen either by defense counsel or by the court. The court is correct in pointing out that no question of the two-witness guaranty is involved where the conduct in question is not treasonable in substance; and the American authority is consistent to the effect that the "mere" expression of ideas or beliefs is not treason.114 The opinion is historically sound in linking this latter position to the requirement of an "overt act" as a distinct element of the crime.115 But the court too easily dismisses the other half of the problem. Marshall's dictum in the Bollman case has, indeed, been accepted, and other evidence supports its conclusion that the treason clause does not exclude the creation of all other types of subversive crime.ll6 It does not necessarily follow from this general proposition, however, that the treason clause does not forbid resort to the criminal law in certain types of allegedly subversive conduct; and historical evidence, ignored by the Circuit Court of Appeals, strongly suggests that the treason clause was in fact understood to guarantee nonviolent political controversy against suppression under the charge of treason or any other criminal charge based on its supposed subversive character.117 The argument that since "'treason' requires more than mere words to constitute the offense," an offense based on utterances cannot be within any limits set by the treason clause,118 merely begs the question, as some minority judges have in effect pointed out.119

It may be argued that, whatever the historic meaning of the treason clause as a guaranty of free discussion of public issues, the matter is of no present practical significance, because the development of judicial doctrine under the First and Fourteenth Amendments affords a completely adequate basis for the protection of such values.120 This is true, so far as it goes; and, indeed, since Article III, Section 3 of the Federal Constitution does not limit the creation by state legislatures of offenses against state sovereignty, the Fourteenth Amendment affords a broader guaranty than could the federal treason clause.121 Even on this level of analysis, however, the treason clause of the Federal Constitution, and the similar provisions copied from it by many state constitutions, are guaranties of somewhat different scope than the typical declarations in favor of free speech. The treason clauses are clearly limitations upon all the agencies of government, instead of being addressed directly to the legislative branch only. The literal copying of the federal clause imports its history into state constitutions in a more clear-cut fashion than may be true of free speech guaranties which often differ considerably in declarations of policy from the terms of the First Amendment. All of this, however, is on a relatively formal level. Of more substantial importance is the proper understanding of the historic scope of the treason clause as evidence of the constitutional policy in favor of free expression and advocacy of ideas and beliefs. The broad sweep of the First Amendment offers little more than an authorization and command to develop a free speech policy. The content of that policy cannot be deemed so precisely defined and firmly based as to deny significance to some tangible evidence of what seemed wise and practical to the men who created this government.

Thus the historic background of the treason clause furnishes specific evidence rather than a priori reasoning for assigning a higher value to the free and nonviolent play of controversy over public issues than to the broad prevention of possible danger to security of social institutions. Especially does it underline the importance of preventing use of the criminal law as an instrument of competition for political power Further, it validates the most practical judicial test yet devised to set the standard for permissible intervention by the state For in its historic context, the requirement of the overt act as a distinct element of "treason" amounts, so far as the expression of ideas or beliefs is involved, to the requirement of a showing of a "clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."122 And, out of a knowledge of a long and cruel history of abuses of arbitrary power, the history of the law of treason insists on the reality of this distinction with a curt finality found nowhere else "words may make an Heretick, but not a Traytor."123 The "clear and present danger" test is still fighting ground. The historic background of the treason clause furnishes a basis never yet adequately examined, for a reconsideration of the constitutionality of such legislation as the federal Espionage Act and state legislation against "criminal syndicalism" insofar as these are directed primarily against utterances. Certainly, as a command levelled directly at judges as well as legislators, the restrictive definition of treason carries an admonition of policy concerning the application of such statutes which has not yet been presented with its due weight of persuasion


1 See 31 Journals of the Continental Congress (1934) 497, Burnett, The Continental Congress (1941) 664.

2 Massachusetts legislation and executive pronouncements declared the rebellion to be 'treason.' See, in Acts and Resolves of Massachusetts (reprinted under c. 104, Resolves of 1889), the Acts of Feb. 16 and 20, 1787 (1786, c. 56, 59) 176, 187, Resolves of Feb. 4, Mar. 10, and June 15, 1787, and June 10 and 19, 1788, id. at 423, 515, 677, 212, Governor's Messages of Sept 28, 1786 and Feb. 3, 1787, id. at 928, 960 See 32, 33 Journals of the Continental Congress (1934) 24, 38-89, 85, 93-105, 110-111, 176n, 719-22, 724, 729, and numerous letters cited under heading Shays Rebellion in 8 Burnett, Letters of Members of the Continental Congress (1936) Cf. Congressional reactions to the mutiny of the soldiers demanding back pay, in Philadelphia, 1783 5 Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. 1845) 66, 92, 93 (hereinafter cited Elliott), cf. 7 Burnett, op. cit. supra (1934) 499 Regarding the Congressional provision of troops to support Massachusetts, see 5 Elliott 94-95, 99 cf. id. at 108 As to the influence of the rebellion on the movement for the Constitution, see The Federalist (Lodge ed. 1908) Nos. 25, 74 (Hamilton), and 43 (Madison), 3 Elliott 82, 101, 180, 274 (Virginia Convention), 4 id. at 20, 96, 112, 220 (North Carolina), 282, 327 (South Carolina) See U.S. Const. Art I, §§ 8, 9, Art IV, § 4.

3 On the eve of the Federal Convention, the New York Act of Feb. 16 1787, 2 Laws of the State of New York (1778-1789) (1789) 55, declared "That if any Person do levy War against the People of this State, within this State, or be adherent to the Enemies of the People of this State, or of the United States of America, within this State, giving to them Aid and Comfort in this State, or elsewhere, and be thereof, by good Proof, attainted of open Deed, such Offences, and none other, shall be adjudged Treason against the People of the State of New-York".

A two-witness requirement in the terms of the Statute of 7 William III was also provided The declaration that 'none other' than the two named offenses should constitute treason was without precedent in state treason legislation. No clue to the origin of this language has been found in the available records of the legislature (See Journal of the New York Assembly 10th sess., 1787, at 9, 10, 14, 38, 40, 41, 45, 50, 54, Journal of the New York Senate, 10th sess. , 1787, at 24, 25, 27, 29, 33, a further check of records available in Albany, made through the courtesy of Miss Frances D. Lyon, Law Librarian of the New York State Library, revealed no additional information). There is no evidence that the act came to the attention of the Federal Convention The Journal (p. 9) notes that the bill which became the Act of Feb. 16, 1787, was laid before the house by Mr Jones, pursuant to the law for revising the laws of the state Previously, the Journal notes (p. 5), it had been ' Ordered that Mr [Alexander] Hamilton, Mr [Samuel] Jones, Mr [John] Ray, Mr. J. [John] Livingston, Mr C. [Caleb] Smith, or any 3 or more of them, be a Committee to inspect what laws are expired, or near expiring, and that they, from time to time report to the House which of them they judge necessary to be revived or continued, and likewise what new laws they shall conceive necessary to be made for the benefit of the State ' There is no evidence that Hamilton urged a restrictive policy on treason in the Philadelphia Convention, though in The Federalist, he cites the treason clause as one item to answer the criticism that the Constitution lacked a proper bill of rights See note 18 infra.

4 2 Farrand, The Records of the Federal Convention of 1787 (1911) 136 (hereinafter cited Farrand). This is from the document which Farrand accepts as the best evidence of Pinckney's plan In the version which Pinckney sent John Quincy Adams, in December, 1818 when the latter was preparing the Journal of the Convention for publication, the treason section is similar to that in the Constitution 3 id. at 598, 608 Since the general emphasis of the Pinckney plan seems to be on defining the federal relationship, it is likely that the grant of "exclusive" power to declare treasons was intended to exclude state legislative power, rather than to distinguish legislative-made from judge-made law.

5 See 1 Farrand 292.

6 Id at 242-45 The resolution on treason, crossed out in Paterson's notebook, appeared in the copy of these resolutions, printed Feb. 15, 1788, in the Maryland Gazette and Baltimore Advertiser Farrand thinks it "altogether probable' that the printer obtained the document from Luther Martin, who had stated in his Genuine Information that he had a copy of the New Jersey plan 3 id. at 614.

7 See 2 Curtis, History of the Constitution of the United States (1861) 384, Meigs, Growth of the Constitution (1900) 252-54 Farrand, The Framing of the Constitution of the United States (1913) 48, advances the suggestion of the source of the committee's authority to draft the treason clause.

8 2 Farrand 144, 168, 182, 4 Farrand, The Records of the Federal Convention of 1787 (rev. ed. 1937) 45.

9 Unless otherwise noted, all of the following incidents of the discussion of Aug. 20 will be found in 2 Farrand 345-50.

Note that Madison's argument bears out the conclusion reached in the examination of the colonial and state materials, that no notable legacy of protest against abuse of treason prosecutions had resulted, see Ch 3, supra, at pp. 82, 86 Compare Madison's strictures on the too limited character of the offense with his comments in a letter of Oct. 18, 1787, to Washington, regarding Mason's objections to the Constitution 3 Farrand 130, 5 Writings of James Madison (Hunt ed. 1904) 11, 13-14 Madison declares that it is proper, Mason's criticism to the contrary notwithstanding, that the Constitution does not "secure" the common law "Since the Revolution every State has made great inroads & with great propriety in many instances on this monarchical code What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points, they wd have done more, they would have brought over from G B a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law."

10 See 2 Farrand 337-39. This harmonizes with the statement of Dickinson, who "wished to know what was meant by the 'testimony of two witnesses', whether they were to be witnesses to the same overt act or to different overt acts. He thought also that proof of an overt-act ought to be expressed as essential to the case." Dr. Johnson also "considered that something should be inserted in the definition concerning overt-acts."

11 The other point in connection with treason which led to considerable discussion was the proposal to deprive the President of the power to pardon in such cases. This debate yields no help on the definition of the scope of the offense, save as it further indicates the general understanding that fundamental domestic disturbances were embraced within "treason." 2 Farrand 626-27. The concern manifested in this discussion of the pardon power, lest the President abuse it to protect his accomplices in an effort to take unconstitutional power to himself, seems the only instance in which the positive concern for the safety of the state qualified the Convention's general preoccupation with protection of the individual.

12 See 2 id. at 345, 348-49, 3 id. at 223.

13 Cf. Nott, The Mystery of the Pinckney Draught (1908) 187 Wilson speaks most positively in the discussions of the treason clause in the role of draftsman-technician See 2 Farrand 346, 348-49.

14 2 Papers of James Wilson, 1775-1792 (MSS Pa. Hist. Soc.) 60. On p. 59 is a list of "Objections," none of which refers specifically to treason. No. 26 on this list, however, is "Crimes shall be tried by Jury therefore Congress may declare Crimes."

15 See 2 Elliott 469, 487, McMaster and Stone, Pennsylvania and the Federal Constitution (1888) 351-53, 3 Farrand 163, CL.

16 Lectures on Law, delivered in the College of Philadelphia 1790 and 1791, 3 Works of Hon. James Wilson (Bird Wilson ed. 1804)c V, 95-106 (As a check on the completeness of the search of the Wilson papers, this study has enjoyed the counsel of the late Burton Alva Konkle, of Swarthmore, Pa , long a student of Wilson's career).

17 3 Works of Hon. James Wilson (Bird Wilson ed. 1804) 104.

18 Madison sets the tone of debate, in The Federalist "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." No. 43, at 269, 463 Madison here takes an advocate's position in interesting contrast to his opinion on the floor of the convention in favor of broader discretion for the legislature However, this does not affect the relevance of his argument in The Federalist, as reflecting the prevailing thought by which the treason clause was believed justified. Cf. his warning, in his first speech in the Virginia ratifying convention, that in republics the turbulence, violence and abuse of power of majorities have more frequently than any other cause produced despotism 3 Elliott 87.

In another number of The Federalist, Hamilton lists the treason section among several provisions protecting the liberties of the individual, in answer to the criticism of the absence of a bill of rights. No. 84, at 533, 534 In Massachusetts, 'Cassius' (James Sullivan) asserted, of the treason clause. "This section is truly republican in every sense of the expression, and is of itself fully adequate to proving that the members of the federal convention were actuated by principles the most liberal and free — This single section alone is sufficient to enroll their proceedings on the records of immortal fame.

'Contrast this section with the laws of England, in regard to treason, and, notwithstanding the boasted rights of the subject in that isle, we shall find our own in this, as well as almost every other particular, far to exceed them Letters of Cassius, X, 42, in Essays on the Constitution of the United States (Ford ed. 1892).

In North Carolina, "Marcus" (James Iredell) answered the objections which George Mason of Virginia had carried from the Convention to the hustings Mason had raised the fear that under the "necessary and proper" clause in the enumeration of the powers of Congress, new crimes and unusual punishments might be created Iredell pointed out that "in the case of treason, which usually in every country exposes men most to the avarice and rapacity of government, care is taken that the innocent family of the offender shall not suffer for the treason of their relation. This is the crime with respect to which a jealousy is of the most importance, and accordingly it is defined with great plainness and accuracy, and the temptations to abusive prosecutions guarded against as much as possible ' Pamphlets on the Constitution of the United States (Ford ed. 1888) 360, 2 McRee, Life and Correspondence of James Iredell (1858) 199, 207. Cf. the numerous charges to federal grand juries, by Mr Justice Iredell, in McRee.

19 3 Elliott 102-103 Subsequently, without directly attacking the treason clause, Henry complained of the failure to forbid cruel and unusual punishments. "Congress, from their general powers, may fully go into business of human legislation They may legislate, in criminal cases, from treason to the lowest offence — petty larceny They may define crimes and prescribe punishments In the definition of crimes, I trust they will be directed by what wise representatives ought to be governed by But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives."

The constitutionalist leaders were not men to let a point slip by, especially so flagrant a slip Nicholas promptly corrected Henry. "But the gentleman says that we are not free from torture Treason against the United States is defined in the Constitution, and the forfeiture limited to the life of the person attainted Congress have power to define and punish piracies and felonies committed on the high seas, and offences against the laws of nations, but they cannot define or prescribe the punishment of any other crime whatever, without violating the Constitution.

Randolph also caught up Henry on the point. "The honorable gentlemen observe that Congress might define punishments, from petty larceny to high treason. This is an unfortunate quotation for the gentlemen, because treason is expressly defined in the 3d section of the 3d article, and they can add no feature to it. They have not cognizance over any other crime except piracies, felonies committed on the high seas, and offences against the law of nations ' 3 Elliott 447, 451, 466.

20 See 4 Elliott 176, 203, 205, 209. Cf. Iredell's reply to Lenoir, id. at 219, 220.

21 See remarks of General Brooks in the Massachusetts Convention, in Debates, Resolutions and other Proceedings of the Convention of the Commonwealth of Massachusetts (1856) 201, remarks of Messrs Hartley and M'Kean, in the Pennsylvania Convention, McMaster and Stone, op. cit. supra note 15, at 291, 375.

22 "Some very remarkable instances [of the extension of the definition of treason] have occurred, even in so free a country as England A person possessed a favorite buck, and, on finding it killed, wished the horns in the belly of the person who killed it. This happened to be the king, the injured complainant was tried, and convicted of treason for wishing the king's death." Quoted in 2 Elliott 487.

23 On the issue of whether by acting as city gatekeeper by appointment of the British, Carlisle had, within the meaning of the Pennsylvania act, taken a "commission" from the enemy, Wilson cited Blackstone for the strict construction of penal statutes 7 Pennsylvania Archives (Hazard ed. 1853) 50 In addition to the quotations on p. 136 supra, see the references to the "uncertain and ambiguous state of the common law of treason, and to Hale's praise for "the great wisdom and care of the parliament, to keep judges within the bounds and express limits of this statute, and not to suffer them to run out, upon their own opinions, into constructive treasons, though in cases which seem to have a parity of reason ' Lectures on Law, 3 Works, op. cit. supra note 16, at 96, 97.

24 Cf. Warren, The Making of the Constitution (1928) 489-90.

25 Charge Delivered to the Grand Jury for the District of Massachusetts, in the Circuit Court of the United States, Boston, Oct. 12, 1792, 2 McRee, op. cit. supra note 18, at 368 Cf. Marshall, C. J., in Marbury v. Madison, 1 Cranch 137, 179 (U.S. 1803) Iredell was not yet displaying the extreme Federalist position which marked his charges to juries in later years, and his emphasis on the limitation of judge-made treason may fairly be taken to reflect a prevailing attitude of 1789 Cf. his remarks in answer to Mason's objections to the Constitution, note 18 supra.

26 Lectures on Law, 3 Works, op. cit. supra note 16, at 99-100. These qualities had now been borrowed for the strengthening of the Constitution "This single sentence comprehends our whole of national treason, and, as I mentioned before, is transcribed from a part of the statute of Edward the third By those who proposed the national constitution, this was done, that, in a subject so essentially interesting to each and to all, not a single expression should be introduced, but such as could show in its favour, that it was recommended by the mature experience, and ascertained by the legal interpretation, of numerous revolving centuries." Id at 100.

See, to the same effect, 2 Story, Commentaries on the Constitution of the United States (2d ed. 1851) 540.

27 See, e.g., discussions in the Federal Convention and the ratifying debates regarding the proposal to limit the President's power to pardon in cases of treason, 2 Farrand 637, 639, 3 id. at 127, 158, 218, 4 op. cit. (rev. ed. 1937) at 59, 60 See also references to the guaranty of a republican form of government for the states and protection against insurrection 2 id. at 47~49, The Federalist (Lodge ed. 1908) Nos. 25, 74 (Hamilton), 2 Elliott 430, 520-21, 3 id. at 497, 498, 4 id. at 20, 96, 112, 195, 220, cf. terms of amendments proposed in ratifying conventions, 1 id. at 325, 326 (disarming citizens), 327, 328, 334, 335, 2 id. at 542, 546, 3 id. at 657-58, 4 id. at 245, 249 (martial law in time of insurrection). Cf. Charge of Mr Justice Story on the Law of Treason, Delivered to the Grand Jury of the Circuit Court of the United States, Holden at Newport, for the Rhode-Island District, June 15, 1842, 30 Fed. Cas. 1046, No. 18, 275 (C.C.D.R.I. 1842).

28 See note 26 supra Cf. the same problem as posed by Jefferson's use of the terms of the Statute of Edward III in his proposed revision of the Virginia criminal code, in Ch 3, pp. 87-89 supra Cf. 8 Holdsworth, History of English Law (2d ed. 1937) 318 (hereinafter cited Holdsworth).

29 Cf. McKinney, Treason under the Constitution of the United States (1918) 12 Ill. L. Rev. 381, Warren, What is Giving Aid and Comfort to the Enemy? (1918) 27 Yale L. J .331.

30 The concern shown in the Convention discussion that the phrase regarding "aid and comfort" be added to "adhering" in order to limit the latter, shows that a theory of a wholesale liberal construction of this offense is not supportable See pp. 132-133 supra.

31 2 Farrand 348.

32 2 Elliott 469.

33 See notes 15, 16 supra, Lectures on Law, 3 Works of Hon. James Wilson (Bird Wilson ed. 1804) 96, 98, 99. It should be remembered, however, that as counsel for the defense in the Carlisle case in 1778, Wilson had argued for a strict construction of the Pennsylvania statute defining adherence to the enemy See Ch 3, pp. 85, 90 supra, and note 23 supra.

34 (Lodge ed. 1908). No. 43, at 269, 463 Cf. id. No. 74 (Hamilton), 4 Tucker, op. cit. infra note 42, at App, Note B, 11, 40-41.

35 The quotations are from Iredell (note 18 supra), "Cassius" (note 18 supra), and Hartley (note 21 supra) Cf. grand jury charges of Iredell, J., in 2 McRee, op. cit. supra note 18, at 391 (1793), 468 (1796).

36 5 King, Life and Correspondence of Rufus King (1898) 73-75 Cf. Hamilton's opinion against the radical treason act proposed by Lloyd in 1798, in a letter of June 29, 1798, to Wolcott. "Let us not establish a tyranny Energy is a very different thing from violence." 6 Hamilton, Works (1851) 307 3 Adams, History of the United States (1890) 468, after noting that laymen might think Marshall could have reached another result in some of his rulings in the Burr trial, if he had so chosen, comments. "On the other hand, the intent of the Constitution was clear The men who framed that instrument remembered the crimes that had been perpetrated under the pretence of justice, for the most part they had been traitors themselves, and having risked their necks under the law they feared despotism and arbitrary power more than they feared treason. No one could doubt that their sympathies, at least in 1788, when the Constitution was framed, would have been on the side of Marshall's decision. If Jefferson, since 1788, had changed his point of view, the chief-justice was not under obligations to imitate him.'

37 Richard Dobbs Spaight, a member of the Philadelphia convention, expressed astonishment at the extreme fears about the treason clause voiced by some opponents of the Constitution. "But the gentleman says, that any man who will complain of their oppressions, or write against their usurpation, may be deemed a traitor. What an astonishing misrepresentation! Why did not the gentleman look at the Constitution, and see their powers' Treason is there defined ... Complaining, therefore, or writing, cannot be treason." 4 Elliott 205, 209.

38 See note 27 supra.

39 See pp. 133-134 supra.

40 1 Stat 112 (1790) c. IX, § 1, 18 U.S. C § 1 (1940). The penalty provision was subsequently modified by the addition of alternative penalties of fine and imprisonment The Journal of Senator Maclay (Harris, ed. 1880) 128, 129, 158, 163, 164, 165, records stages in the passage of the bill containing the treason section through the Senate He notes that there was little debate on any aspect of the bill and records no mention of the treason section.

41 By the Act of Sept 6, 1788, c. VI, the governor and judges of the Northwest Territory adopted a "Law respecting Crimes and Punishments' which declared the offense of treason against the United States and against the territory, in terms reminiscent of the Revolutionary period, and in several respects probably in excess of the constitutional provision (conspiracy included, no evidentiary provision) See The Laws of the Northwest Territory, 1788-1800 (Pease ed. 1925), 17 Collections of Illinois State Historical Library, 1 Law Series 13, cf. id. at 322 The territorial laws were so obviously inartistic, however, that this act cannot be taken seriously as a contemporary exposition of what crimes might be defined under the constitutional provision.

42 See Rawle, A View of the Constitution of the United States (2d ed. 1829) 139 ff. , Sergeant, Constitutional Law (1822) 367, 2 Story, Commentaries on the Constitution of the United States (2d ed. 1851) 539-40, 4 Tucker's Blackstone's Commentaries with Notes of Reference, to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia (1803) 74, n. 1, 75, n. 2, 76, n. 3, App , Note B, 11, 16-17, 39, 40-41.

Rawle, however, does analyze the overt act element of the crime in a fashion which implies that the scope of the offense should be sufficiently broad to give preventitive protection to the state, when he says, "It is one of those crimes which may not be accomplished by a single act, but, on the contrary, is in its very nature progressive yet continuous. Robbery, murder, and many other crimes, are or may be effectuated in a short space of time, and when the body is deprived of life or the goods are taken from the spot, the perpetration of the guilt is full and entire but the attempt to subvert a government is not a momentary act, combinations are formed, unlawful schemes devised and pursued, opposition is commenced and carried on, and the crime is ever the same, the protraction of time may increase the terror and the injury, but in a legal view they do not enhance the guilt in its outset it is deemed the highest crime that can be committed, and of course, no subsequent circumstances can raise it higher." Rawle, op. cit. 141.

43 In the Philadelphia Convention, see Madison, 2 Farrand 345, 346, King, id. at 347, 348. In the ratifying debates, see pp. 136-138 supra. See also Ex parte Bollman, 4 Cranch 75, 125 (U.S. 1807), Stephan v. United States, 133 F(2d) 87, 90 (C.C.A. 6th, 1943), cert denied, 318 U.S. 781 (1943), United States v. Haupt, 47 F. Supp. 832, 834, 836 (N D Ill. 9142) (on demurrer to indictment), rev'd on other grounds, 136 F. (2d) 661 (C.C.A. 7th, 1943), Wimmer v. United States, 264 Fed. 11, 13, (C.C.A. 6th 1920), cert denied, 253 U.S. 494 (1920), United States v. Greathouse, 26 Fed. Cas. No. 15, 254, at 21 (C.C.N.D. Cal. 1863), charge to grand jury, by Nelson, J., 30 Fed. Cas. No. 18,271, at 1035 (C.C.S.D.N.Y. 1861), United States v. Hanway, 26 Fed. Cas. No. 15,299, at 126 (C.C.E.D. Pa. 1851), United States v. Hoxie, 26 Fed. Cas. No. 15,407, at 398 (C.C.D. Vt. 1808), United States v. Burr, 25 Fed. Cas. No. 14,692a, at 13 (C.C.D. Va. 1807) (on motion to commit), Iredell, J., and Peters, J., in charge to the jury, in Case of Fries, 9 Fed. Cas. No. 5126, at 909, 910 (C.C.D.Pa. 1799) Executive constructions to the same effect may be seen in Adams' pardon of those convicted in "Fries' Rebellion," and in Van Buren's caution to President Jackson concerning the application of the law of treason to the South Carolina nullification controversy of 1832.

44 See United States v. Burr, 25 Fed. Cas. 55, No. 14,693 (C.C.D. Va. 1807).

45 See note 24 supra Following the acquittal of Burr on what amounted to a directed verdict, Senator Giles introduced a bill to spell out certain conduct which should constitute treason See 17 Annals of Cong. (1852) 108-109 Anderson, William Branch Giles (1914) 115-21 Though martistically drawn and vague in scope, this bill would certainly have extended the concept of principals in treason as laid down by Marshall, J., under the constitutional definition, in the Burr case, and it may also have been designed in effect to include conspiracy to levy war within the offense The eventual dropping of the bill was probably due to considerations of politics, but in the debates, Senators Mitchell and Pope objected that it was unconstitutional for Congress to undertake further to specify the constitutionally fixed definition of treason They criticized the bill for extending the crime, but also took the fundamental position that Congress lacked power to pass even declaratory legislation See 17 Annals of Cong. (1852) 109, 110-11, 138, 139, 141, 143, 145 Giles replied, in part, that, "The word 'only' ... in this clause relates only to the species of treasons embraced by it, and not to any particular acts which may amount to treason under either of these species." Id at 117-19. As has been noted, the framers apparently intended to take the words of the Statute of Edward III, to some ill-defined extent, with the judicial gloss which had been put on them, and this lends color to Giles' argument In substance, however, the contention fits poorly into the dominant restrictive emphasis of the treason clause. Giles' further reliance on the "necessary and proper" clause begs the question, there may be power to create lesser crimes of a subversive character (see pp. 151-152 infra), but on its face Art III, § 3 deprives Congress of any authority over the scope of treason to which a power under the "necessary and proper" clause could be ancillary See Senator Pope, id. at 141-45.

46 Congress seems to have intended to do this in the Act of July 17, 1862, 12 Stat 589 (1862), 18 U.S. C § 2 (1940) which, so interpreted, Field, J., treated as valid in United States v. Greathouse, 26 Fed. Cas. No. 15,254, at 23-24 (C.C.N.D. Cal. 1863). Cf. the Sedition Act of 1798, which was treated not as setting penalties for different grades of treason, but as creating distinct, if lesser, offenses. See Iredell, J., and Peters, J., in Case of Fries, 9 Fed. Cas. No. 5126, at 909, 910 ff. (C.C.D.Pa. 1799), answer of Chase, J., to impeachment charges, (Note) 9 Fed. Cas. 934, 939 (1800).

47 Cf. Stephan v. United States, 133 F. (2d) 87, 90 (C.C.A. 6th, 1943), cert denied, 318 U.S. 781 (1943), United States v. Werner, 247 Fed. 708, 709 (E.D. Pa. 1918), charge to grand jury by Nelson, J.,30 Fed. Cas. No. 18,271, at 1035 (C.C.S.D.N.Y. 1861), United States v. Greathouse, 26 Fed. Cas. No. 15,254, at 21 (C.C.N.D. Cal. 1863), United States v. Hanway, 26 Fed. Cas. No. 15,299, at 126 (C.C.E.D. Pa. 1851), United States v. Hoxie, 26 Fed. Cas. No. 15,407, at 397, 400 (C.C.D. Vt. 1808), see Case of Fries, 9 Fed. Cas. No. 5126, at 909, 910 (C.C.D.Pa. 1799).

48 Cf. United States v. Greathouse, 26 Fed. Cas. No. 15,254, at 24 (C.C. N.D. Cal. 1863), charge to grand jury by Smalley, J., 30 Fed. Cas. No. 18,270, at 1033 (C.C.S.D.N.Y. 1861), United States v. Greiner, 26 Fed. Cas. No. 15,262, at 39-40 (E.D. Pa. 1861), see Case of Fries, 9 Fed. Cas. No. 5126, at 909 (C.C.D.Pa. 1799).

49 Congress has of course exercised its power to reduce the penalty, since the Civil War the death penalty — the only punishment under the first treason act — has been balanced by an alternative of fine and imprisonment The apparently unlimited power of Congress over the jurisdiction of federal courts would also contribute to the illusory character of a ban on "diminishing" the scope of the crime Cf. Ex parte McCardle, 6 Wall 318 (U.S. 1867) A state may not authorize its courts to prosecute federal statutory crimes, without congressional approval It might be argued that this is not true of a crime defined by the United States Constitution, which the state judges are sworn to uphold But state courts have declared themselves to lack jurisdiction of charges of treason against the United States People v. Lynch, 11 Johns 549 (N.Y. 1814), Ex parte Quarrier, 2 W. Va. 569 (1866) Moreover, in view of the legislative construction evidenced by the promptness with which the first Congress declared the crime of treason, substantially in the terms of the Constitution, it might be argued that Art, III, § 3 is not self-executing.

50 See note 27 supra.

51 See pp. 133-144 supra.

52 See United States v. Haupt, 136 F. (2d) 661, 671, 674, 675 (C.C.A. 7th, 1943), United States v. Robinson, 259 Fed. 685, 694 (S.D.N.Y. 1919), charge to grand jury by Sprague, J., 30 Fed. Cas. No. 18,273, at 1040 (D Mass 1861), charge to grand jury by Nelson, J., 30 Fed. Cas. No. 18,271, at 1035 (C.C.S.D.N.Y. 1861), United States v. Greiner, 26 Fed. Cas. No. 15,262, at 40 (E.D.Pa. 1861), Iredell, J., in charge to grand jury, Case of Fries, 9 Fed. Cas. No. 5126, at 840-41 (C.C.D.Pa. 1799) (cf. charge to trial jury, id. at 909, 914), United States v. Magtibay, 2 Philipp 703, 705 (1903) But cf. Stephan v. United States, 133 F(2d) 87, 94 (C.C.A. 6th, 1943), cert denied, 318 U.S. 781 (1943), United States v. Fricke, 259 Fed. 673, 677, (S.D. N.Y. 1919), Kane, J., in charge to grand jury, 30 Fed. Cas. No. 18,276, at 1049 (E.D.Pa. 1851), Paterson, J., in United States v. Mitchell, 26 Fed. Cas. No. 15,788, at 1280 (C.C.D.Pa. 1795).

53 317 U.S. 1 (1942).

54 Id. at 38 Cf. Smith v. Shaw, 12 Johns 257 (N.Y. 1815), In the Matter of Robert Martin, 45 Barb 142 (N.Y. 1865).

55 Though such rulings may have the effect of giving trial judges a desirably greater latitude in adjusting the severity of penalty to the viciousness of the criminal, they seem objectionably formalistic from a constitutional point of view, and difficult to reconcile with the substantive policy of the double jeopardy clause Cf. 2 Selected Essays on Constitutional Law (Ass'n of American Law Schools ed. 1938) 1368, Note (1932) 45 Harv. L. Rev. 535.

56 As in Frohwerk v. United States, 249 U.S. 204 (1919), (see p. 160 infra), so in Ex parte Quirin, the possible bearing of the treason clause on the validity of the prosecution was not satisfactorily explored in the briefs The defense did not rely on Art III, § 3 The prosecution argued in part that defendant Haupt had renounced his American citizenship (a contention on which the Court found it unnecessary to pass), and in part, apparently, that Art III, § 3 defines a civil crime, which must be deemed to be modified in application by the historic scope of the military jurisdiction, imported by the war powers grant to Congress The Court has, it is true, recognized the two witness requirement of Art III, § 3, as one of the procedural guaranties of the Constitution, like that of trial by jury and similar safeguards which a majority of the court defended from the encroachment of military jurisdiction in Ex parte Milligan, 4 Wall 2 (U.S. 1866) See Chambers v. Florida, 309 U.S. 227, 236 (1940). Thus, insofar as the Court satisfied itself in the Quirin case that Ex parte Milligan did not bar the military jurisdiction, it might be thought to answer any question raised under the procedural guaranty of the treason clause But the fact that the Court went out of its way to employ the questionable analogy of the double jeopardy decisions to show that treason was not the gravamen of the charge against Haupt suggests that the particular historic policy represented by Art III, § 3 might present an uncomfortable issue to the proponents of military jurisdiction, even where the more general doctrine of Ex parte Milligan is satisfied See Robinson, Justice in Grey (1941) 380-81.

It should be noted, also, that even if the procedural (two-witness) aspect of the treason clause is ruled to be superseded by military jurisdiction, the question remains, whether the constitutional definition of treason may set some limits to the substantive scope of crimes of betrayal of allegiance under the laws of war. This issue was implicit in the trial of Vallandigham, before a military commission, for disloyal utterances, but it is not clear whether he relied in part on the restrictive policy of the treason clause when he contended there that "the alleged 'offense' is not known to the Constitution of the United States, nor to any law thereof." See The Trial of Clement L. vallandigham, 1 American State Trials (Lawson ed. 1914) 699, 713. The argument from the treason clause was relied on in petitioner's contention in Ex parte Vallandigham, 28 Fed. Cas. No. 16,816, at 886-88, 889 (C.C. S.D. Ohio, 1863), but was not passed on by the courts, which ruled that they lacked jurisdiction See Ex parte Vallandigham, 1 Wall 243 (U.S. 1863) The military prosecutions out of which came Ex parte Milligan in substance presented only the issue of military versus civil jurisdiction, and not that of the possible effect of the treason clause in limiting the substantive scope of subversive crimes under the laws of war, for the conduct charged seems clearly to have involved treason See Pitman, The Trials for Treason at Indianapolis (1865), The Milligan Case (Klaus ed. 1929) 24, Milton, Abraham Lincoln and the Fifth Column 170, c. 8.

57 This seems to have been a significant factor in the provision of fine and imprisonment as an alternative to the death penalty, by the Act of July 17, 1862 See Cong. Globe, 37th Cong. , 2d Sess. (1862) 2165, 2166, 2167-68, 2169, 2173, cf. id. at 2199. See Cummings and McFarland, Federal Justice (1937) 192, 193, Robinson, Justice in Grey (1941) 202 n. , 290, Kenny, Outlines of Criminal Law (15th ed. 1936) 315-16.

58 A penalty may be "cruel and unusual' because unreasonably disproportionate to the offense Weems v. United States, 217 U.S. 349 (1910), see Chambers v. Florida, 309 U.S. 227, 236 (1940). The contention that severe penalties possible under sedition acts are so disproportionate as to violate the Eighth Amendment has not met with success, and it seems that no legislative excess short of including capital punishment would run afoul of this. provision Cf. Dunne v. United States, 138 F. (2d) 137, Ho (C.C.A. 8th, 1943), cert denied, 320 U.S. 790 (1943), Chafee, Free Speech in the United States (1941) 480 But cf. Herndon v. Lowry, 301 U.S. 242 (1937), Chafee, op. cit. 396 See 1 Schofield, Essays on Constitutional Law and Equity (1921) 421.

59 See Baldwin, Whiskey Rebels (1939) 266, 269-70, Burgoyne, Homestead (1893) c. XV, Cummings and McFarland, Federal Justice (1937) 68, 2.

Monson, Life and Letters of Harrison Gray Otis (1913) 80, 126, Stowell, "Fort Fnck" or the Siege of Homestead (1893) c. XXIX, 2 Warren, The Supreme Court in United States History (rev ed. 1935) 299-30.

60 Cf. Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746 in the County of Surry, and of other Crown Cases (3d ed. 1792) 196-97.

61 See the examples given on pp. 212-217 of conduct held sufficient as an overt act of treason, though innocent on its face.

62 In the Philadelphia Convention, Rufus King seems to have regarded the effort to limit the application of the death penalty for subversive crimes as the central motive of the restrictive definition of treason, though he was skeptical of the practical results to be achieved See 2 Farrand 347, 348 Cf. the implications of the remarks of Wilson and Iredell, notes 15, 18 supra In the debate over the Act of July 17, 1862, Senator Clark (N.H.) indicated his belief that a crime was not treason, and hence the two-witness requirement did not apply, if the death penalty was not provided Cong. Globe, 37th Cong. , 2d Sess. (1862) 2169, cf. note 56 supra. This seems clearly an erroneous interpretation of Art III, § 3, if only because the broad power there allowed to Congress to fix the penalty negates the idea that the penalty defines the crime.

63 See p. 143 supra, cf. note 59 supra.

64 Cf. Anderson, J., dissenting in Taylor v. State, 194 Miss. 1, 54-57, 11 So (2d) 663, 681-82 (1943) (rev'd sub nom. Taylor v. Mississippi, 319 U.S. 583 (1943), on basis of the First Amendment) See 3 Holdsworth 289-90, 292.

65 See 10 Oxford English Dictionary (Murray ed. 1926) 304, 2 Holdsworth 450, 3 id. at 289-93, 4 id. (1925) at 492-500, 8 id. at 307-322.

66 Coke, Third Part of the Institutes of the Laws of England (5th ed. 1671) includes in his catalog of crimes the separate offenses of misprision of treason (p. 36), felony by 3 H 7 for a member of the King's household to compass the King's death or that of a Privy Counsellor (p. 37), heresy (p. 39), receiving Jesuits (p 101), praemunire (p. 119) See, likewise, 4 Blackstone, Commentaries on the Laws of England (1770) c. IV, VII, VIII, IX, 1 Hale, History of the Pleas of the Crown (Emlyn ed. 1736) 371, 383, 662, 681, 687-90, 1 Hawkins, Treatise of the Pleas of the Crown (7th, Leach, ed. 1795) 6, 22-83, 127, 128, 130, 149, 151 Cf. 2 Holdsworth 451, 452, 4 id. (1925) at 506, 8 id. at 322, 327, 328, 403.

67 See chapter 3, supra, passim.

68 The only comment in point is the brief observation by Rufus King "that the controversy relating to. Treason might be of less magnitude than was supposed, as the legislature might punish capitally under other names than Treason." 2 Farrand 347. There is no direct indication of what his colleagues thought of this interpretation, but King's remark did not stop the detailed discussion of restrictive phrasing for the definition Moreover, his comment was made in the context of a discussion of whether, because of the same conduct, an individual might be guilty of treason against both the nation and a state, and hence its relevance is questionable when the issue is not one of the distribution of powers within the federal system, but the scope of the treason clause as a part of the Bill of Rights Cf. 2 Farrand 348 Though his view was undoubtedly colored by partisanship, King later took a stronger stand on the treason clause as a guaranty of individual liberty See note 36 supra.

69 1 Stat 112 (1790), 18 U.S. C §§ 1, 2,3, (1940) Cf. Report of a select committee to consider petitions for repeal of the Alien and Sedition Laws, 9 Annals of Cong. (1851) 2985, 2988 § 14 of the Act of April 30, 1790 punished counterfeiting public securities of the United States State v. M'Donald, 4 Port 449, 462-63 (Ala 1837), relies on this to show that the treason clause has not been deemed to prevent the Congress from denouncing as criminal conduct which was once treason in England But counterfeiting seems to have a peculiar history which robs it of any such broad significance in this connection. It was included in the Statute of Edward III apparently because of borrowing of the Roman concept that the offense was a sacrilege against the emperor, whose image appeared on the coin, or perhaps also as a protection of what was regarded as a personal prerogative of the king, and not because it was regarded as a political offense See 2 Pollock and Maitland, History of English Law (2d ed. 1923) 505, 3 Holdsworth 289 Thus, no more weight should be given to its inclusion in "treason" than to the fact that at times that crime was extended to cover murder, assault, or extortion See 2 id. at 450, 3 id. at 289, 4 id. (1925) at 498.

70 See § 1 of the Act of July 14, 1798, 1 Stat 596 (1798), cf. 1 Stat 613 (1799), See also the remarks of Albert Gallatm and John Nicholas, 8 Annals of Cong. (1851) 2111, 9 id. at 3003, cf. Report of a select committee to consider petitions for repeal of the Alien and Sedition Laws, id. at 2987.

71 4 Cranch 75, 126 (U.S. 1807) Cf. Iredell, J., and Peters, J., in charge to jury in Case of Fries, 9 Fed. Cas. No. 5126, at 909, 910 (C.C.D.Pa. 1799), answer of Chase, J., to impeachment charges, (Note) 9 Fed. Cas. 934, 939 (1800) In 1807, following the acquittal of Burr, Attorney General Rodney gave his opinion that the Congress could constitutionally make conspiracy to levy war a separate offense of "conspiracy to commit treason against the United States," punishable by fine. "The Constitution has wisely defined the crime of treason, but it must be obvious that, before this crime is consummated by an overt act of levying war, the public peace may be disturbed and the public safety endangered, by the previous preparations for such an event." Caesar A Rodney to Hon. John Randolph, Dec. 2, 1807, 1 American State Papers (1834) 717, 18 Annals of Cong. (1852) 17'8-19 The provision considered by Rodney was contained in substantially similar form both in the bill introduced in the Senate by Giles and that sponsored in the House by Randolph, as rebukes to Marshall's rulings in the Burr trial See 17 Annals of Cong. (1852) 105, 18 id. at 1717 See Senator Pope's attack on the constitutionality of this conspiracy legislation 17 id. at 147, 148.

The historic coexistence of other subversive crimes with that of treason certainly presents a more convincing argument against a sweeping interpretation of the treason clause restrictions than either of two other contentions which might be advanced (1) It might be argued that since the betrayal of either a ' natural" or a "local" allegiance is an historic element of treason, a crime against the security of the state which did not involve any such element of allegiance could not in any event fall within any ban set by the treason clause But cf. People v. Lloyd, 304 Ill. 23, 42-43, 136 N E 505, 515 (1922) Of course a prosecution against a person in fact owing no kind of allegiance could not be limited by Art III, § 3 Cf. Ex parte Quirin, 317 U.S. 1, 38 (1942) But plainly the treason clause was intended as one of the protective benefits accruing to those who did owe allegiance to this government, and it would seem a clear evasion of the constitutional policy if one might convict a person owing allegiance for that for which he could not be convicted if the allegation of allegiance were an element of the offense (2) It might be argued that it is historically characteristic of the genus "treason" that it is a capital offense, and that, therefore, if the legislature sets a lower maximum penalty, "treason" is no longer involved in any sense Cf. Peters, J., in Case of Fries, loc cit. supra But the fact that the Constitution couples its careful restrictions on "treason" with a broad grant of power to Congress to fix the penalty seems sufficient to show that the degree of punishment was not regarded as the essential criterion of the offense.

72 See p. 87 supra Inspired by the assassination of Garfield and McKinley, an amendment was proposed to include in the treason definition attempts to murder the President See Musmanno, Proposed Amendments to the Constitution (1889), H. R. Doc. No. 551, 70th Cong. , 2nd Sess. (1929) 148.

73 See 8 Holdsworth (1925) 314-15, Chapter 2, supra Of course the growth of constructive levying of war was in its way an equally expansive use of 'treason' to suppress such competition of interests in the community as was objectionable to those holding power But these cases do, nevertheless, involve breaches of the peace, and hence do not present as clear-cut a basis for a guaranty against abusive prosecutions as where peaceful political processes are involved.

74 8 Holdsworth (1925) 309.

75 8 Holdsworth (1925) 311, 312-13, 315, 316-18.

76 See Chapter 2.

77 See Coke, op. cit. supra note 66, at 174 (see 8 Holdsworth (1925) 339 on cases in Coke's Reports), 4 Blackstone, op. cit. supra note 66, at 123, 150-53, 1 Hawkins, op. cit. supra note 66, c. 23, p. 151.

78 See Chafee, op. cit. supra note 58, at 18, cf. id. at 16-17, 20-22.

79 See notes 34-36 supra As will be seen in chapter 5, this policy factor has bulked large in the first judicial explanations of the policy represented by the treason clause.

80 See pp. 188-189, 200-201, 206.

81 See United States v. Werner, 247 Fed. 708 (E.D.Pa. 1918), aff'd, 251 U.S. 466 (1920), and cases cited in note 118 infra, Michael and Wechsler, Criminal Law and Its Administration (1940) 1144 n. , Robinson, Justice in Grey (1941) 288, Black, Debs v. The United States — A Judicial Milepost on the Road to Absolutism (1932) 81 U. of Pa. L. Rev. 160, 161-62, 170, Hall, Criminal Attempt (1940) 49 Yale L. J. 789, 818, Sears, Civil Liberties in Wartime, in War and the Law (Puttkammer ed. 1944) 17 Cf. Herndon v. Lowry, 301 U.S. 242 (1937), and Chafee, op. cit. supra note 58, at 391, 396.

82 See note 18 supra, cf. Chafee, op. cit. supra note 58, at 19-20 Schofield observes, "Many of the publications on politics in the Colonies before the Revolution were seditious and even treasonable under the English common law and its administration One of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press." He cites the declaration of principle of the Continental Congress of 1774, and the Virginia religious liberties act of 1777 2 Essays on Constitutional Law and Equity (1921) 510, 521-22 Madison's original coolness to the insertion of a restrictive definition of treason in the Constitution (see p. 130 supra) is hard to understand, and is at variance with his general philosophy.

83 See Chafee, op. cit. supra note 58, at 16-18.

84 See 2 Elliott 78, 339, 436, 449, 453 ff. , 488 ff., 540, 3 id. at 191, 202-204, 246, 4 id. at 139-41, 148-49, 259-60, 315.

85 3 id. at 46, 51, 103, cf. note 99 infra And when Henry incautiously argued that Congress 'may legislate, in criminal cases, from treason to the lowest offense, Nicholas and Randolph both pounced on him, to assert that, the new government being one of delegated powers only, the effect of the few precisely defined powers granted Congress in this field was to exclude the creation of any additional offenses 3 Elliott 451, 466.

86 4 Elliott 209, 219 Subsequently, James Iredell underlined and expounded at greater length the point made by Spaight "A gentleman who spoke some time ago (Mr Lenoir) observed, that the government might make it treason to write against the most arbitrary proceedings He corrected himself afterwards, by saying he meant misprision of treason Where is the power given to them to do this? They have power to define and punish piracies and felonies committed on the high seas, and offences against the law of nations They have no power to define any other crime whatever."

The persistent Lenoir rose to declare that he meant such punishments might be inflicted within the federal district, where the new government would have exclusive powers of legislation Iredell's final answer to this was to recur to the character of the government as one of delegated powers. "The powers of the government are particularly enumerated and defined, they can claim no others such as are so enumerated In my opinion, they are excluded as much from the exercise of any other authority as they could be by the strongest negative clause that could be framed Id at 219, 220.

So also in the Pennsylvania convention, Hartley, after making the familiar argument that a bill of rights was unnecessary because the new government possessed only those powers granted to it, which did not include authority to commit the abuses feared by its opponents, linked this contention with the significance of the treason clause. "Some articles, indeed from their preeminence in the scale of political security, deserve to be particularly specified, and these have not been omitted in the system before us The definition of treason, the writ of habeas corpus, and the trial by jury in criminal cases, are here expressly provided for, and in going thus far, solid foundation has been laid.' McMaster and Stone, op. cit. supra note 15, at 291, 375.

87 See note 71 supra, Legal Tender Cases, 12 Wall 457, 535 (U.S. 1872).

88 See note 86 supra Significant in this respect is the absence of any substantial criticism of abuses of treason trials in the pre-Constitutional period. See p. 126 supra, cf. pp. 91-92 supra.

89 Thus note the bold sweep with which the policy of the First. Amendment is painted, in Madison's report of the committee of the Virginia House of Delegates, to which was referred the communications of various states regarding the Virginia Resolutions on the Alien and Sedition Laws 4 Elliott 596-98, Sen Doc No. 873, 62d Cong. , 2d Sess. (1912) 148 ff.

90 Alleged violations of the guaranty of a republican form of government have been held, of course, to present only political, nonjusticiable issues But, as the discussion in the Convention hereafter noted shows, any effort by violence to deprive a state of a republican form of government would undoubtedly involve conduct amounting to a levying of war against the United States. This link between Art III, § 3, and Art IV, § 4, was made explicit by Tench Coxe. "The United States guarantee to every state in the union a separate republican form of government From thence it follows, that any man or body of men, however rich or powerful, who shall make an alteration in the form of government of any state, whereby the powers thereof shall be attempted to be taken out of the hands of the people at large will stand guilty of high treason, or should a foreign power seduce or over-awe the people of any state, so as to cause them to vest in the families of any ambitious citizens or foreigners the powers of hereditary governors, whether as Kings or Nobles, that such investment of powers would be void in itself, and every person attempting to execute them would also be guilty of treason An Examination of the Constitution for the United States of America, No. IV, reprinted in Ford, op. cit. supra note 18, at 145-46 Coxe, it will be noted, does not seem to limit his doctrine to cases of violence, but it may be doubted that, practically, the situation of a peaceful change of the frame of government would arise.

91 2 Farrand 47.

92 Id. at 47-49 Mason summed up the position by pointing out that "if the Genl Govt should have no right to suppress rebellions agst particular States, it will be in a bad situation indeed As Rebellions agst itself originate in & agst individual States, it must remain a passive Spectator of its own subversion.' Id at 47. And Gorham further pointed up the underlying policy, when he commented. "With regard to different parties in a State, as long as they confine their disputes to words they will be harmless to the Genl Govt & to each other If they appeal to the sword it will then be necessary for the Genl Govt, however difficult it may be to decide on the merits of their contest, to interpose & put an end to it ' Id. at 48.

93 See id. at 47-49, cf. note 27 supra.

94 See, in the Philadelphia Convention, Randolph, 2 Farrand 48, Iredell, in the North Carolina ratifying convention, 4 Elliott 195, Tench Coxe, note 90 supra Cf. President Jackson's view that the enactment by a state legislature of militia legislation to implement a decision to secede from the Union would be an overt act of treason 2 Messages and Papers of the Presidents (Richardson ed. 1927) 1173, 1184-86, 1203, 1217, see the exchange between Jackson and Van Buren, 4 Correspondence of Andrew Jackson (Bassett ed. 1929) 500, 506, 507, 5 id. at 3.

95 See p. 151 supra.

96 Act of July 14, 1798, § 1, 1 Stat 506 (1798), 18 U S C § 6 (1940).

97 See note 9 supra.

98 8 Annals of Cong. (1851)2158, cf. id. at 2159, Adams, Life of Albert Gallatin (1879) 204.

99 See Sen. Doc. No. 873, 62d Cong. , 2d Sess. (1912) passim Likewise, George Nicholas, who had advanced the treason clause in praise of the Constitution in the Virginia ratifying debate (note 19 supra) did not rely on that guaranty in his attack on the Sedition Act See A Letter from George Nicholas, of Kentucky, to His Friend, in Virginia (reprint, 1799) 12-13, making the familiar arguments from the lack of any affirmative grant of power to Congress to pass such legislation, and from the First Amendment Cf. Carroll, Freedom of Speech and of the Press in the Federalist Period, The Sedition Act (1920) 18 Mich L. Rev. 615, 618.

100 See 2 Parnngton, Main Currents in American Thought (1927) 14-19.

101 Sen. Doc. No. 873 62d Cong., 2d Sess. (1912) 85.

102 Id. at 99-100 Earlier, mingling the arguments from the treason clause and the First Amendment, Taylor had said a power to restrain treason was more necessary in a Government than to regulate sedition, that our Constitution had yet limited the power over treason to a few cases However, Congress might still regulate punishment in case of treason, and it was possible that they might establish in such case a punishment short of death, a punishment even inferior to that of sedition. What then would result? Treason was the genus, sedition a species. If the first were limited and the second not, what security had we? He then read the 3d article of the amendments to the Constitution [sic] concerning freedom of speech, etc , and asked in what sense this clause was understood at the time of adoption Could it then have been contemplated by anyone, that such a law as this would ever have been passed? ..." Sen. Doc. No. 873, 62d Cong. , 2d Sess. (1912) 7.

See also id. at 29, 36, cf. speech of Daniel, id. at 71 ff. Cf. the less satisfactory distinction of the Virginia Ordinance of 1776, attempted by John Nicholas (Va ) in the House, 9 Annals of Cong. (1851) 3010-3011.

103 Taylor, An Inquiry into the Principles and Policy of the Government of the United States (1814) 473-74, cf. his New Views of the Constitution of the United States (1823) 198, to similar effect.

104 See, however, State v. M'Donald, 4 Port 449 (Ala 1837), sustaining against a claim under the treason clauses of the federal and state constitutions a statute punishing with death the aiding or being concerned with any slaves in an actual or plotted rebellion.

105 249 U.S. 204 (1919).

106 Id. at 210.

107 Cf. pp. 147-148 supra.

108 The defense raised the treason clause in terms essentially as summarized by Holmes, J., but without citation of authority of any kind (Note comments on the totally inadequate presentation of the defense in this case, in Chafee, op. cit. supra note 58, at 83) Without citation of any evidence from history or any direct precedent, the Government briefly argued that "If the treason clause of the Constitution were to be construed as depriving Congress of the power to protect the raising and supporting of armies against wilful obstruction thereof, in cases where the crime of treason as defined in the Constitution may not have been committed, then this power to raise and equip armies and, consequently, the power of national self-defense might be rendered nugatory ' Government brief, p. 21. The argument is pertinent, but equally pertinent is the historical evidence that the treason clause was the product of sober and deliberate action, taken by men fully aware that states might be subjected to grave peril of their existence. Cf. Brandeis, J., concurring, in Whitney v. California, 274 U.S. 357, 372 (1927) The Government argued further that most violations of the important economic regulations essential to waging modern war arise from commercial, rather than treasonable motives, and that defendant's argument would deny all power to punish such offenses But, in its historic context, the treason clause may limit the power to punish utterances, without preventing the punishment of economic crimes See note 71 supra.

109 251 U S 466 (1920). 110 Id at 493.

111 People v. Steelik, 187 Cal. 361, 375-76, 203 Pac 78, 84 (1921), cf. notes 24-26 supra.

112 264 Fed. 11 (C C A 6th, 1920), cert denied, 253 U. S.494 (1920).

113 264 Fed. at 12-13. 114 See pp. 153-154 supra.

115 See Chapter 2.

116 See pp. 151-152 supra.

117 See pp. 154-157 supra.

118 See Berg v. State, 29 Okla Cr Rep 112, 233 Pac 497 (Okla Cr Ct. App 1925), and separate opinion of Doyle, J., in Ex Parte Wood, 71 Okla. Cr. Rep 200, 204 110 P (2d) 304, 309 (Okla. Cr. Ct. App 1941) No rationalization of significance is developed in the other cases Some are satisfied simply to invoke the authority of the Frohwerk and Wimmer cases. Lockhart v. United States, 264 Fed. 14, 17 (C.C.A. 6th, 1920), cert denied, 254 U.S. 645 (1920), Schoborg v. United States, 264 Fed. 1, 7 (C.C.A. 6th, 1920), Equi v. United States, 261 Fed. 53 (C.C.A. 9th, 1919), cert denied, 251 U.S. 560 (1920), People v. Lloyd, 304 Ill 23, 136 N.E. 505 (1922), Taylor v. State, 194 Miss 1, 11 So (2d) 663 (1943), rev'd on other grounds, 319 U.S. 583 (1943) Marshall's dictum in Ex parte Bollman (p. 152 supra) is the principal reliance of State v. M'Donald, 4 Port 449 (Ala. 1837), and State v. Laundy, 103 Ore 443, 460, 204 Pac 958, 964 (1922), cf. People v. Mintz, 106 Cal. App 725, 290 Pac 93 (Cal. D. C. App. 1930), rev'd sub nom Stromberg v. California, 283 U.S. 359 (1931) (on grounds which would not affect the Bollman dictum) State v. Hennessy, 114 Wash 351,195 Pac 211 (1921), seems to treat the issue as one of federalism, failing to see, or ignoring, the issue of individual liberty.

119 See Minturn, J., dissenting, in Colgan v. Sullivan, 94 N.J.L. 201,206, 109 Atl. 568, 570 (1920) (malicious prosecution charge of seditious utterances), Anderson, J., dissenting in Taylor v. State, 194 Miss. 1, 54-57, 11 So. (2d) 663, 681-82 (1943).

120 See Million, Political Crimes (1940) 5 Mo L. Rev. 164, 167.

121 See State v. M'Donald, 4 Port 449 (Ala 1837), and State v. Hennessy, 114 Wash 351, 195 Pac 211 (1921), cf. Ex Parte Quarrier, 2 W Va 569 (1866), People v. Lynch, 11 Johns 549 (N.Y. 1814).

122 Schenck v. United States, 249 U.S. 47, 52 (1919).

123 Coke, op. cit. supra note 66, at 14.