In reality, we wouldn’t be allowed to open the doors to the Constitutional Convention. The Convention met in secret, fearful that any publicizing of its deliberations would risk undermining the final product. So if we sneaked into the room in late August 1787, what would we find? Hot, sweaty, grumpy men who had been deliberating for several months and were eager to wrap it up and head home. Philadelphia in August is usually hideous, and it was especially hideous without air-conditioning, in uncomfortable clothing, and in a room with the windows and doors tightly sealed up. To a modern nose, the aroma would probably not have been particularly appealing.
But the delegates were doing something extraordinary on that August day. They were writing into the nation’s proposed constitution a definition of treason. No state constitution had contained any such provision. But here, enshrined in the “supreme law of the land,” would be a binding definition of treason that Congress and presidents could not alter. “Treason against the United States,” the delegates wrote, “shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It is the only crime specifically defined in the Constitution.
Although defining treason in a national constitution was a new idea, the phrases the delegates used were not pulled out of thin air. Every lawyer at the Convention, and probably most nonlawyers as well, would have understood the significance of the terms employed in the definition. They were technical legal terms, rooted in an English statute that was over four hundred years old.
In 1351, the English Parliament enacted the Statute of Treasons.1 Like all English statutes at the time, it was written in French. Ever since the Norman Conquest of 1066, French was the formal language of English government. The statute limited the crime of treason to seven basic offenses. Roughly translated, they are (1) compassing or imagining the death of the king, the queen, or their eldest son and heir; (2) violating the wife of the king, the king’s eldest unmarried daughter, or the wife of the king’s eldest son; (3) levying war against the king in his realm; (4) adhering to the king’s enemies in his realm, giving them aid and comfort in the realm, or elsewhere; (5) counterfeiting; (6) killing the chancellor, the treasurer, or the king’s justices; and (7) the murder of a master by a servant, a husband by a wife, or a prelate by a cleric. The seventh category would later come to be called “petty treason” to distinguish it from the others, which constituted “high treason.”
The framers used this statute as the starting point for their definition of treason. It was easy to see that many of the offenses in the English statute would be inappropriate in the new republic of the United States. Accordingly, the Convention dropped the provisions about compassing the king’s death. Not only was there no king in America, but this provision had generated some of the most egregious abuses under English law. Sleeping with the king’s wife was easily dispensed with. Counterfeiting was obviously a serious crime, but it no longer seemed like high treason, so the Convention empowered Congress to punish counterfeiting as a separate offense. Similarly, the Convention dropped the provisions about killing high government officials—presumably murder laws would be sufficient to deal with the problem. And there was no suggestion that “petty treason” had any business being in the Constitution. What was left was levying war against the king in his realm, which the framers changed to “levying war against [the United States],” and adhering to the king’s enemies in his realm or elsewhere, which the framers changed to “adhering to their enemies, giving them aid and comfort.” Thus our Constitution contains language, roughly verbatim, from an English statute that is now over six hundred and fifty years old.
Why did the English Parliament feel a need to limit the scope of treason in 1351? As historian J. G. Bellamy has pointed out, the statute was “a direct result of the royal judges trying to extend the common law of treason.”2 To some extent, Parliament was concerned about protecting English subjects from abusive treason prosecutions. But money was probably an even more significant factor. In 1351, England was still a feudal society, in which almost all wealth was held in the form of land.3 Under the feudal system, “tenants” held interests in land from their “lords,” and these interests were subject to a variety of complicated rules, including restrictions on inheritance. If a tenant died without an heir, the land returned to the lord’s control, and he could now grant it to someone else (for a fee, of course). A felony conviction had the same effect—the convicted felon’s lands would be returned to his lord. In both of these circumstances, death without heir and felony conviction, the land was said to have “escheated” to the lord.
But there was an important exception to the escheat rule. If the tenant was convicted of treason, the land reverted directly to the king, and the lord received nothing. Accordingly, powerful landholders had a strong interest in seeing the crime of treason narrowly defined. Every treason conviction was effectively a hit to their pocketbooks. The petitions to narrow the law of treason all emphasized the loss of the escheats as a primary justification.4 So the Parliament of 1351, composed largely of wealthy landholders, adopted the Statute of Treasons in large part to shore up its own financial interests.
As the feudal system gradually disintegrated, this justification for the law was largely forgotten, and the Statute of Treasons became celebrated as a great gift from Parliament to the people. In the early seventeenth century, for example, the famous jurist Sir Edward Coke wrote that the Parliament that enacted the statute “was called Benedictum Parliamentum [Blessed Parliament], as it well deserved.” Coke argued that the only English legislation more honored than the Statute of Treasons was the Magna Carta.5
This view was shared by the members of the Constitutional Convention. Pennsylvania delegate James Wilson, a primary architect of the Treason Clause, was later appointed to the Supreme Court by President George Washington. In a celebrated series of law lectures delivered while he was a justice, Wilson explicitly linked the Treason Clause to the English Statute of Treasons. Wilson argued that the Constitution’s definition of treason was deliberately “transcribed from a part of the statute of Edward the third” so that its language would be “recommended by the mature experience, and ascertained by the legal interpretation, of numerous revolving centuries.” Wilson added, “This statute has been in England, except during times remarkably tyrannical or turbulent, the governing rule with regard to treasons ever since. Like a rock, strong by nature, and fortified, as successive occasions required, by the able and honest assistance of art, it has been impregnable by all the rude and boisterous assaults, which have been made upon it, at different quarters, by ministers and judges; and as an object of national security, as well as of national pride, it may be well styled the legal Gibraltar of England.”6
Three significant legal results flow directly from Article III’s definition of treason and its explicit use of terminology from the English Statute of Treasons. First, as the word “or” in the clause makes clear, there are two distinct forms of treason: (1) levying war against the United States; and (2) adhering to their enemies, giving them aid and comfort. Each was treated as a completely distinct offense under English law, and each had its own particular definition. American law has followed this practice and has treated the offenses as entirely separate. One can levy war against the United States, for example, without adhering to our enemies, just as one can provide aid and comfort to our enemies without levying war against the United States (sending money to the enemy is an obvious example).
Second, because the Treason Clause requires that treason consists only of levying war or adhering to enemies, the law of treason cannot be applied to ordinary political disputes or disagreements about governmental policy. Harshly criticizing the government, for example, can never be the basis of a treason prosecution. As Chief Justice John Marshall explained in 1807, treason is the “most atrocious offense which can be committed against the political body, so it is the charge which is most capable of being employed as the instrument of those malignant and vindictive passions which may rage in the bosoms of contending parties struggling for power.”7 A year later, Justice Henry Brockholst Livingston explained that the definition of treason was made part of the “great fundamental law,” so that it would not be “changed on a sudden emergency, so as to gratify the vengeance or promote the views of aspiring or designing men.”8 Under the Constitution, treason cannot be expanded at the whims of persons in power to oppress political opponents.
Third, the definition of treason cannot be broader in the United States than it was in England at the time of the adoption of the Constitution. “Levying war” and “adhering to enemies” were technical terms of English law that had a precise and well-understood meaning. American courts have considered arguments that American treason law is narrower than its English predecessor. As we will see, the meaning of “levying war,” for example, is probably narrower under modern American law than it was under English law in 1787. But no court has interpreted these terms as broader than they were understood in English law (say, by construing “adhering to enemies” in a more expansive fashion). Indeed, any such argument would falter on the Treason Clause’s emphatic use of the word “only.” If the definition of treason could be broadened as well as narrowed, the term “only” would lose any operative meaning, thus entirely defeating the restrictive purposes of the Treason Clause.
Although the definition of treason is the most well-known aspect of the Treason Clause, the drafters included several other significant provisions governing trials and punishments. The Convention added a requirement stating that “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.” English law had long required proof of an overt act and the testimony of two witnesses in treason cases. But those witnesses could testify to different overt acts. The Constitution significantly tightened this requirement by requiring two witnesses to the same overt act. No other crime in America is subject to this rigid evidentiary requirement. Moreover, English law had allowed convictions based solely on out-of-court confessions, if two witnesses testified to the confession.9 Such convictions are impermissible under the Treason Clause, which requires that confessions be made in open court.10
The Treason Clause also provides that “The Congress shall have Power to declare the Punishment of Treason.” Under English law, as noted in the Introduction, the punishment for treason was unbelievably horrific. This punishment had been occasionally ordered during the American Revolution, but it was never actually carried out. Every convicted traitor was simply hanged.11 The Constitution doesn’t formally mandate the death penalty for treason, instead granting discretion to Congress to determine the form of the punishment. Although the early Congresses set the penalty at death (presumably by hanging), current law provides courts with greater flexibility. Death is still a permissible sentence, but it can be as low as five years in prison coupled with a $10,000 fine.12
The Treason Clause ends by stating, “no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.” This terminology is so arcane that it would mystify even most well-trained lawyers of today. So here’s a rough translation into modern terms: under English law, an “attainder of treason” was a finding that a person was guilty of treason. This could happen in one of two ways: (1) conviction by a jury; or (2) a bill of attainder enacted in Parliament that would declare a person guilty without a trial. Either form of attainder carried two legal consequences (in addition to death): forfeiture and corruption of blood.
Forfeiture meant that the attainted person forfeited his entire estate to the Crown, meaning, of course, that his heirs would never inherit his property. “Corruption of blood” was even more pernicious. Under this doctrine, the person attainted was deemed to have never legally existed. His blood had been “corrupted,” and no person could inherit by descent from his bloodline. To take a simple example, suppose the Earl of Bedford had one son, James, and James, in turn, had one son, Charles. If James died before his father, his son Charles would inherit the Earldom of Bedford and all of his grandfather’s property upon the Earl of Bedford’s death. But if James had been convicted and executed for treason, Charles would lose all inheritance rights against his grandfather’s estate. His claim is based on his status as James’s son, but, for legal purposes, James never existed. The earl’s lands and title will pass to his closest male relative, excluding Charles. These consequences were highly significant, especially in a society like England’s, where, until very recently, most wealth was held in the form of land.
The drafters of the American Constitution viewed these punishments for treason with abhorrence. In effect, they punished children for the sins of their fathers, punishing the innocent along with the guilty. Accordingly, the Treason Clause prohibits corruption of blood—for inheritance purposes, a convicted traitor is treated the same as anyone else. Similarly, any forfeiture of property will last only as long as the traitor is alive. After that, the property will return to his heirs. And by prohibiting bills of attainder (in a separate provision of the Constitution), the drafters ensured that treason convictions would only be obtained through jury trials.
Finally, it is worth noting a significant limitation of the Treason Clause—it governs only a small subset of a wide range of disloyal behavior. Under the Treason Clause, the government is severely restricted with respect to what can be punished as treason. But the Clause does not prevent the government from criminalizing all kinds of other disloyal behavior as offenses distinct from treason.13 To take one example, it is not treason to spy for a country that is a friendly ally of the United States. But Congress can still punish this disloyalty as espionage. As early as 1807, the United States Supreme Court warned that the “crime of treason should not be extended by construction to doubtful cases,” because Congress was always free to create separate punishments for “crimes not clearly within the constitutional definition.”14 A century later, a federal appellate court noted that “it has never been doubted that Congress may punish . . . acts which are of a seditious nature and tend toward treason, but which are not of the direct character . . . which would meet the constitutional test and make them treason.”15 Indeed, these offenses can even carry the death penalty, as is the case with espionage.
But if one can be executed for other forms of disloyalty does it really matter that the Constitution imposes such severe restrictions on treason? Under English law, the distinction between treason and other crimes made sense, because the punishments were different, most notably in the form of execution. But under American law there is little difference between being executed for treason and being executed for some other crime of disloyalty, such as espionage (like the Rosenbergs). So does the Treason Clause continue to serve any useful purpose?
I think that it does. As legal scholar James Willard Hurst pointed out, there is a “peculiar intimidation and stigma carried by the mere accusation of treason.”16 Moreover, as the furor over Donald Trump has indicated, many Americans have a powerful desire to define conduct that they find reprehensively disloyal as treason. For some people, it is not enough that Trump’s and his associates’ actions may well violate a host of other federal criminal laws—they want him and them to go down for treason, and nothing less. This very intensity of feeling in times of political ferment may itself be the best evidence of the framers’ wisdom in carefully defining the crime.