Article III, Section 3: Treason
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.
We are covering this section out of the usual order, for reasons that should be obvious.
This section is known as the Treason Clause. It expresses four ideas:
- 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 first point expressly rejects five of the seven traditional forms of treason in British statutory law. The Framers emphasized that only two were appropriate in a constitutional republic. In particular, the Founders abhorred the various forms of “constructive treason” in British statutory law. “Constructive” is one of those wonderful legal terms of art that is almost infinitely flexible; almost anything could be “construed” as treason, and in the years before the Revolution, many were.
“Adhering to their Enemies, giving them Aid and comfort” refers specifically to treason in time of war. To adhere in this context means (according to Bouvier):
ADHERING. Cleaving to, or joining: as, adhering to the enemies of the United States.
2. The constitution of the United States, art. 3, s 3, defines treason against the United States, to consist only in levying war against them or in adhering to their enemies, giving them aid and comfort.
3. The fact that a citizen is cruising in an enemy’s ship, with a design to capture or destroy American ships, would be an adhering to the enemies of the United States. 4 State Tr 328; Salk. 623; 2 Gilb. Ev. by Lofft, 798.\
4. If war be actually levied, that is, a body of men be actually assembled for the purpose of effecting by force a treasonable enterprise, all those who perform any part, however minute, or however remote from the scene of action, and who are leagued in the general conspiracy are to be considered as traitors. 4 Cranch. 126.
The term ‘enemies’ . . . applies only to the subjects of a foreign power in a state of open hostility with us. . . Wherever overt acts have been committed which, in their natural consequence, if successful, would encourage and advance the interests of the rebellion, in judgment of law aid and comfort are given. Whether aid and comfort are given-the overt acts of treason being established-is not left to the balancing of probabilities—it is a conclusion of law.
In the same article, the Lord Chief Justice of England is quoted regarding a famous treason case from World War I:
If a British subject does an act which strengthens or tends to strengthen the enemies of the King in the conduct of a war against the King, that is in law the giving of aid and comfort to the King’s enemies. Again, if a British subject commits an act which weakens or tends to weaken the power of the King and of the country to resist or to attack the enemies of the King and the country, that is in law the giving of aid and comfort to the King’s enemies.
And, yes, in this case, the British definition of a term of legal art is applicable in the United States as well. In the context of a war with foreign enemies, the definition of treason is thus fairly broad.
“levying War against them“. The other definition of treason applied more particularly to rebellion and was meant to be interpreted more narrowly. Blackstone summarizes the term of art in characteristically pithy fashion:
to make or begin war; to take arms for attack; to attack.
Bouvier elaborates:
LEVYING WAR, crim. law. The assembling of a body of men for the purpose of effecting byy force a treasonable object; and all who perform any part however minute, or however remote from the scene of action, and who are leagued in the general conspiracy, are considered as engaged in levying war, within the meaning of the constitution. 4 Cranch R. 473-4; Const. art. 3, s. 3. Vide Reason; Fries’ Trial; Pamph. This is a technical term, borrowed from the English law, and its meaning is the same as it is when used in stat. 25 Ed. III.; 4 Cranch’s R. 471; U. S. v. Fries, Pamphl. 167; Hall’s Am. Law Jo. 351; Burr’s Trial; 1 East, P. C. 62 to 77; Alis. Cr. Law of Scotl. 606; 9 C. & P. 129.
Under Article III a person can levy war against the United States without the use of arms, weapons, or military equipment. Persons who play only a peripheral role in a conspiracy to levy war are still considered traitors under the Constitution if an armed rebellion against the United States results. After the U.S. Civil War, for example, all Confederate soldiers were vulnerable to charges of treason, regardless of their role in the secession or insurrection of the Southern states. No treason charges were filed against these soldiers, however, because Presidenty Andrew Johnson issued a universal Amnesty.
We confess that we are not experts on the law of treason; treason is an extraordinary crime, both in the legal and the colloquial senses, and there is relatively little modern case law and essentially no contemporary lawyers specialized in its prosecution or defense. However, both British subjects and American citizens were convicted, and in some cases executed, for actions, such as radio broadcasts for the Axis in World War II, in which they never picked up a weapon of any kind.
However, from West we surmise that some body of men must take up arms for a conspiracy to amount to treason. We suspect that the courts would define treason very narrowly in any instructions to a modern jury. Thus, a violent invasion of the Capitol would not be treasonable unless at least some of the invaders were armed, and there would have to be proof of conspiracy to overthrow the government by force. A spontaneous riot would not qualify. But were it proved that arms were involved, and that the action was not spontaneous, and that it was incited by a political figure, for the purpose of overthrowing the government, then there would indeed (in our nonexpert opinion) be a case for treason.
A forcible invasion of the Capitol would still be criminal even if it did not amount to treason.:
18 U.S. Code § 2383 – Rebellion or insurrection
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
It is again our (nonexpert) opinion that a forcible invasion of the Capitol, for the purpose of disrupting a lawful transfer of political power, certainly rises to the level of rebellion or insurrection as defined in this statute.
“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 Founders deliberately insisted on the highest standard of proof recognized in their day. The high standard of proof has probably prevented charges of treason from being brought in a number of modern cases. For example, the U.S. Army sergeant who lobbed a grenade into a tent full of officers in Iraq was not charged with treason, but with murder and attempted murder. Murder carries the same penalty as treason and is easier to prove in 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 first part of this sentence is almost a given; since Congress is vested with all legislative power, the only other way the punishment could be declared is if the Constitution itself did so, which the Founders refrained from doing. Of more significance are the restrictions on the permissible punishment. “Corruption of blood” is explained by Bouvier:
CORRUPTION OF BLOOD, English crim. law. The incapacity to inherit, or pass an inheritance, in consequence of an attainder to which the party has been subject.
2. When this consequence flows from an attainder, the party is stripped of all honors and dignities he possessed, and becomes ignoble.
Since titles of nobility are expressly forbidden by the Constitution, the latter is of no legal significance in the United States. However, the corruption of blood spoken of meant that children of a traitor so attainted could not inherit any of his property, nor the property of any of their relatives through him. So if the traitor’s father was still alive at his execution, the grandchildren could not receive any inheritance from him, or anyone else in the family, in perpetuity. The Framers abhorred the notion of children being thus punished for the sins of the father, and expressly prohibited it. Forfeiture of the traitor’s property while living was still permitted, but in practice the forfeiture of all goods as punishment for criminal conviction is not seen in American law, likely as a hedge around this provision and in its spirit.