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Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
Definition and Evidence of Treason
Sec. 1790. THE third section of the third article is as follows: “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.”
Sec. 1791. Treason is generally deemed the highest crime, which can be committed in civil society, since its aim is an overthrow of the government, and a public resistance by force of its powers. Its tendency is to create universal danger and alarm; and on this account it is peculiarly odious, and often visited with the deepest public resentment. Even a charge of this nature, made against an individual, is deemed so opprobrious, that, whether just or unjust, it subjects him to suspicion and hatred; and, in times of high political excitement, acts of a very subordinate nature are often, by popular prejudices, as well as by royal resentment, magnified into this ruinous importance.1 It is, therefore, of very great importance, that its true nature and limits should be exactly ascertained; and Montesquieu was so sensible of it, that he has not scrupled to declare, that if the crime of treason be indeterminate, that alone is sufficient to make any government degenerate into arbitrary power.2 The history of England itself is full of melancholy instruction on this subject. By the ancient common law it was left very much to discretion to determine, what acts were, and were not, treason; and the judges of those times, holding office at the pleasure of the crown, became but too often instruments in its hands of foul injustice. At the instance of tyrannical princes they had abundant opportunities to create constructive treasons; that is, by forced and arbitrary constructions, to raise offences into the guilt and punishment of treason, which were not suspected to be such.3 The grievance of these constructive treasons was so enormous, and so often weighed down the innocent, and the patriotic, that it was found necessary, as early as the reign of Edward the Third,4 for parliament to interfere, and arrest it, by declaring and defining all the different branches of treason. This statute has ever since remained the pole star of English jurisprudence upon this subject. And although, upon temporary emergencies, and in arbitrary reigns, since that period, other treasons have been created, the sober sense of the nation has generally abrogated them, or reduced their power within narrow limits.5
Sec. 1792. Nor have republics been exempt from violence and tyranny of a similar character. The Federalist has justly remarked, that newfangled and artificial treasons have been the great engines, by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other.6
Sec. 1793. It was under the influence of these admonitions furnished by history and human experience, that the convention deemed it necessary to interpose an impassable barrier against arbitrary constructions, either by the courts, or by congress, upon the crime of treason. It confines it to two species; first, the levying of war against the United States; and secondly, adhering to their enemies, giving them aid and comfort.7 In so doing, they have adopted the very words of the Statute of Treason of Edward the Third; and thus by implication, in order to cut off at once all chances of arbitrary constructions, they have recognized the well-settled interpretation of these phrases in the administration of criminal law, which has prevailed for ages.8
Sec. 1794. Fortunately, hitherto but few cases have occurred in the United States, in which it has been necessary for the courts of justice to act upon this important subject. But whenever they have arisen, the judges have uniformly adhered to the established doctrines, even when executive influence has exerted itself with no small zeal to procure convictions.9 On one occasion only has the consideration of the question come before the Supreme Court; and we shall conclude what we have to say on this subject, with a short extract from the opinion delivered upon that occasion. “To constitute that specific crime, for which the prisoners, now before the court, have been committed, war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that, in a case reported by Ventris, and mentioned in some modern treatises on criminal law, it has been determined, that the actual enlistment of men to serve against the government does not amount to levying war. It is true, that in that case the soldiers enlisted were to serve without the realm; but they were enlisted within it, and if the enlistment for a treasonable purpose could amount to levying war, then war had been actually levied.”
Sec. 1795. “It is not the intention .of the court to say, that no individual can be guilty of this crime, who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those, who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war.10
Sec. 1796. The other part of the clause, requiring the testimony of two witnesses to the same overt act, or a confession in open court,11 to justify a conviction is founded upon the same reasoning. A like provision exists in British jurisprudence, founded upon the same great policy of protecting men against false testimony, and unguarded confessions, to their utter ruin. It has been well remarked, that confessions are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favour, or menaces; seldom remembered accurately, or reported with due precision; and incapable, in their nature, of being disproved by other negative evidence.12 To which it may be added, that it is easy to be forged, and the most difficult to guard against. An unprincipled demagogue, or a corrupt courtier, might otherwise hold the lives of the purest patriots in his hands, without the means of proving the falsity of the charge, if a secret confession, uncorroborated by other evidence, would furnish a sufficient foundation and proof of guilt. And wisely, also, has the constitution declined to suffer the testimony of a single witness, however high, to be sufficient to establish such a crime, which rouses against the victim at once private honour and public hostility.13 There must, as there should, be a concurrence of two witnesses to the same overt, that is, open act of treason, who are above all reasonable exception.14
Sec. 1797. The subject of the power of congress to declare the punishment of treason, and the consequent disabilities, have been already commented on in another place.15
1. 3 Wilson’s Law Lect. ch. 5, p. 95, etc.
2. Montesq. Spirit of Laws, B. 12, ch. 7; 4 Black. Comm. 75.
3. 4 Black. Comm. 75; 3 Wilson’s Law Lect. 96; 1 Tucker’s Black. Comm. App. 275, 276.
4. Star. 25, Edw. 3, ch. 2; 1 Hale P.C. 259.
5. See 4 Black. Comm. 85 to 92; 3 Wilson’s Law Lect. 96, 97, 98, 99; l Tuck. Black. Comm. App. 275.
6. The Federalist, No. 43; 3 Wilson’s Law Lect. 96.
7. See also Journ. of Convention, 221, 269, 270, 271.
8. See 4 Black. Comm. 81 to 84; Foster, Cr. Law, Discourse I. But see 4 Tuck. Black. Comm. App. Note B.
9. See 4 Jefferson’s Corresp. 72, 75, 78, 83, 85, 86, 87, 88, 90, 101, 102, 103. See Burr’s Trial in 1807; 3 Wilson’s Law Lect. 100 to 106.
10. Ex parte Bollman, 4 Cranch, 126. See also United States v. Burr, 4 Cranch, 469 to 505, etc.; Serg. on Const. ch. 30, (2 edit. ch. 32;) People v. Lynch, 1 John. R. 553.
11. See United States v. Fries, Pamph. p. 171.
12. 4 Black. Comm. 356, 357.
13. See 4 Black. Comm. 357, 358.
14. United States v. Burr, 4 Cranch, 469, 496, 503, 506, 507.
15. See ante, VoL III. § 1291 to 1296.