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The commitment of America’s Founders to the rule of law appears in many elements of the Constitution. The fact that Treason is the only crime defined[1] in the Constitution is among those elements. Article III, Section 3 provides that:

“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.”

The crime of treason was made constitutional to make it specific and not subject to change by Congress and used for politics. The Framers knew the British government had misused the charge against political foes.

Thinking About the King’s Death Could Cost Your Head

In English law, for a long time before the Revolution, just thinking about the king’s death (known as “compassing”) was treason. The charge was used freely against political adversaries and the danger of an arrest for treason due to mere criticism of the government could chill most opposition.

The charge was particularly chilling due to the potential punishment. The British penalty for treason was exceptionally heinous. Sir William Blackstone described it as follows:

“THE punishment of high treason in general is very solemn and terrible. 1. That the offender be drawn to the gallows, and not be carried or walk; though usually a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement. 2. That he be hanged by the neck, and then cut down alive. 3. That his entrails be taken out, and burned, while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king’s disposal.”

In England, treason was usually related to politics, from conflicts for power.[2] In struggles for control of the throne, the losing faction would be branded as traitors. These were not “traitors” as defined in modern times. “Treason” seldom involved conspiracies with a foreign government for personal benefit. Frequently accused traitors had been among the country’s leaders, who were part of the losing political group in a power struggle.

Consideration of Treason by the Constitutional Convention

This history of the charge of “treason” was in the minds of many during the 1787 Philadelphia Constitutional Convention. Beyond history, personal experience with treason charges prompted on of the delegates to press hard for a constitutional limitation on the charge.

Attorney James Wilson’s Experience with Treason

The strongest advocate for a clear and limited definition of treason at the Philadelphia Constitutional Convention in 1787 was Attorney James Wilson.[3] During the revolution, Wilson was defense counsel for many Philadelphia men who were accused of treason because of relationships with the British while the latter occupied the city from September, 1777 to June, 1778.

After the occupation, 23 individuals were accused of treason to the state of Pennsylvania for their conduct during the British occupation. Of those, only three were convicted and two, Abraham Carlisle and John Roberts, clients of James Wilson, were executed. Carlisle and Roberts were elderly Quakers, and the experience of employing a charge of treason in a politically motivated fashion left an indelible mark on Wilson.[4]

Wilson had gone against public sentiment in defending the accused traitors. The experience left Wilson with a strong conviction that the law of treason should be limited. The Constitution’s clause with the tight definition of treason, with specific requirements for evidence was in no small part due to Wilson’s work during the Constitutional Convention.

Treason In the United States Code

Congress has codified the constitutional definition of treason as follows:

18 U.S. Code § 2381 – Treason

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

(June 25, 1948, ch. 645, 62 Stat. 807; Pub. L. 103–322, title XXXIII, § 330016(2)(J), Sept. 13, 1994, 108 Stat. 2148.)

Removing Treason as a Political Charge: A Commitment to the Rule of Law

There is a story behind every word in the Constitution. It was clear to James Wilson, based upon the executions of two pacifist Quakers for treason that the potential for the political misuse of “treason” was not limited to the English. The constitutional definition was designed to remove the charge from politics and be only applied to clearly provable traitors to the United States. It was another demonstration of the founding commitment to the rule of law.

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[1] The Constitution mentions two other crimes. Article 1, section 8, gives Congress power to punish counterfeiting: “To provide for the Punishment of counterfeiting the Securities and current Coin of the United States” and piracy: “To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations”

[2] Henry VIII had his wives Anne Boleyn and Catherine Howard executed for “treason” allegedly because they were adulterers while married to the king.

[3] Wilson, a signer of the Declaration of Independence, was appointed as an Associate Justice of the United States Supreme Court, by George Washington. He would serve from 1789 to 1798.

[4] Wilson’s home would later come under assault for his role in defending men in court accused of treason. He had first-hand knowledge of the passions easily pressed charges of treason could arouse.

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