Treason
When the framers of the Constitution prepared to draft the provisions relating to treason, they were mindful of two potentially conflicting concepts. First was the need to protect their newly-formed government from those who would betray it. Just as vital was the need to protect the citizenry from the abuses that had been common under British rule, when many people had been accused of treason merely for participating in political activities.
Aware that many American citizens had left England to escape political repression in their homeland, the framers knew that they were themselves guilty of treason as revolutionaries against the British government. As Benjamin Franklin had observed at the signing of the Declaration of Independence, if the signers did not hang together, they would hang separately.
Many of the framers were influenced by English and French political thought of the time, which decried the arbitrary power of the government to try its citizens crimes of treason. Particularly influential were the writings of Montesquieu, especially L'Espirit Des Lois. Montesquieu suggested that the laws should not punish as treasonable anything but overt acts against government. Words, he wrote, do not constitute an overt act, but are merely ideas.
As a result of this thinking, the U.S. Constitution embodies many of the concepts set forth by Montesquieu. The constitutional clause pertaining to treason does not punish an individual for speaking out against the government, a concept further expressed in the First Amendment protection of free speech. The document's definition of treason is emphatically a limitation on the power of government to arbitrarily define treason and to prove its existence.
Many factors entered into the drafting of the final language of this portion of the Constitution. The drafters were certainly aware that several European powers had significant holdings and designs on the New World: England still controlled Canada, France claimed much of the Mississippi Valley and points west, and Spain controlled Florida and much of the Caribbean, not to mention most of Central and South America. The United States was also threatened to some extent by native Indians, who sometimes allied with European forces. All of these foreign powers were potential threats to the stability of the newly-formed nation. Consequently, the framers of the Constitution determined that it was necessary to punish acts that were clearly treasonous. Thus, Article III, Section 3 provides:
"Treason against the United States, shall consist only in levying War against them, or in adhering to their enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
"The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person Attainted."
One of the earliest trials for treason concerned the Whiskey Rebellion (1795), in which several persons had forcibly resisted taxes levied upon local stills. Two other early cases for treason were brought against those involved in the Aaron Burr conspiracy. Burr, after a distinguished military career in the American Revolution, entered politics and showed great promise. However, his political career was ruined through the efforts of Alexander Hamilton and Thomas Jefferson. Burr and some of his allies planned to move to Louisiana or to Mexico to establish a new state under Burr's control, but the plan was diffused, and Burr and his compatriots were arrested.
In Ex parte Bollman (1807), brought against two of Aaron Burr's associates, U.S. Supreme Court Chief Justice John Marshall ruled that the mere conspiring to subvert the government by enlisting men for a possibly treasonous purpose does not amount to treason. Only if the men were assembled in order to bring about a treasonable purpose could they have been convicted of treason.
"However flagitious may be the crime of conspiring to subvert by force the government of our country," Marshall wrote in the case, "such conspiracy is not treason. To conspire to levy war and actually to levy war, are distinct offenses. The first must be brought into open action, by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that . . . it has been determined that the actual enlistment of men, to serve against the government, does not amount to the levying of war."
Marshall was careful, however, to state that the Court did not mean that no person could be guilty of this crime who had not appeared in arms against the country: "On the contrary, if it be actually levied, that is, if a body of men be actually assembled, for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war."
The net effect of Marshall's pronouncements was to make it extremely difficult to convict someone of levying war against the United States short of the conduct of or personal participation in actual hostilities. At the trial of Burr himself in 1807, it was determined that he had not been present during certain treasonous activities and, therefore, could not be convicted of advising or procuring a levying of war because there were not two witnesses who could testify to his having procured the activities.
The country's general reluctance to punish its citizens for allegedly treasonous activities has continued throughout its history. Prior to the Civil War, it was held that forcible resistance to the Fugitive Slave Law did not constitute a levying of war, and was therefore not treasonous.
Perhaps the most obvious acts of treason in our nation's history were committed during the Civil War, but those who joined the Confederate States were pardoned by President Andrew Johnson's Amnesty Proclamation of December 25, 1868.
The more recent cases concerning treason occurred during and after World War II. In Cramer v. U.S. (1945), a German-born American resident was observed associating with a German saboteur who entered the United States by submarine. Before the war, the saboteur had lived in this country with Cramer and had been in business with him. He returned to Germany and was recruited to conduct sabotage activities in the U.S. When he arrived here, he made contact with Cramer. But the prosecution did not prove Cramer knew the purpose of his return. The Supreme Court held that a person can be convicted of treason only if the prosecution proves that the defendant "adhered" to the enemy and rendered aid or comfort. Nor is there treason if there was no intent to betray. Furthermore, the Court placed special emphasis on the constitutional requirement that the prosecution present the testimony of two witnesses to every treasonable act of which the defendant is accused. It is not enough to show only an intention on the part of the accused.
Two years later, in Haupt v. U.S. (1945), the Supreme Court for the first time sustained a conviction for treason. In this case, the father of a German saboteur had harbored and sheltered his son in his home, had helped him to buy an automobile for treasonous purposes, and had helped him obtain a job in a defense plant.
In a concurring opinion in that case, Justice William 0. Douglas restated the law of treason as it had been defined by the Supreme Court: " . . . the overt act and the intent with which it is done are separate and distinct elements of the crime. Intent need not be proved by two witnesses but may be inferred from all the circumstances surrounding the overt act. But if two witnesses are not required to prove treasonable intent, two witnesses need not be required to show the treasonable character of the overt act. For proof of treasonable intent in the doing of the act necessarily involves proof that the accused committed the overt act with the knowledge or understanding of its treasonable character.
"The requirement of an overt act is to make certain a treasonable project has moved from the realm of thought into the realm of action."
In Kawakita v. U.S. (1952), it was found that an American-born person, whose parents were Japanese, went to visit Japan just prior to World War II, and was prevented from returning to the U.S. when the war broke out. He reached majority in Japan, whereupon he registered as a Japanese national. There, he worked for a corporation that produced Japanese war materials. There was evidence that he had attacked Americans who were compelled to work at the plant. After the war, Kawakita registered as an American. At trial, the jury decided that he had not renounced his American citizenship while he was in Japan. The Supreme Court therefore ruled that the defendant's nationality was irrelevant and that an American citizen must remain faithful to his country wherever he resides. Consequently, the court upheld his conviction.
The second clause of Article III, Section 3, pertaining to forfeiture, had rarely been invoked. one of the few Supreme Court cases on the subject followed the Civil War, during which time Congress passed an act for the confiscation of the rebels' property. In Wallach, et al., v. Van Riswick (1875), the Supreme Court held that because of the constitutional provisions pertaining to treason, the Confiscation Act could only deprive a person of property during his lifetime. Upon his death, the court ruled, whatever interest that remained in the confiscated property must be returned to the person's heirs.
Related to treason are crimes committed under the Espionage Act of 1917, which, among other things, makes it a crime to communicate prohibited information to the advantage of any nation, even if such communication does not injure this country. It was under this act, for instance, that the famous convictions of Ethel and Julius Rosenberg were obtained for divulging to the Soviet Union information concerning the Los Alamos nuclear plant.
Another related statute passed by Congress is the Alien Registration Act of 1940, which made it unlawful to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States.
Over the 200 years that the U.S. Constitution has been in existence, there have been very few convictions for treason, and most of those persons who have been convicted have subsequently been pardoned. This may be a reflection of the concept that political freedom deserves the utmost protection and that only the most serious breaches are deserving of punishment.