Treason Down to the Constitution
(a) Prior to the Revolution
IN MOST OF the colonies there was at some stage some legislative definition or at least recognition of the existence of an offense of treason. Charters and proprietary grants and the royal instructions to colonial governors sometimes conferred authority to exercise martial law for the suppression of what might amount to treason. There were scattered prosecutions for treason in the colonies, but we have few reports of these and no evidence to suggest that there developed a common law of treason or any substantial gloss upon the legislative provisions. The statutory offense, however, was generally outlined or recognized in sufficiently general terms to give room for a creative role of the executive in deciding what to prosecute and of the judges in interpreting the scope of the crime.
Taking the colonial period as a whole, in most of the colonies the definition of the offense was clearly thought of in terms of the English legislation stemming from the Statute of 25 Edward III.1 This is not true, however, of the earliest references to the crime, mainly in the northern colonies. The authority given in charters and grants and in instructions to royal governors was not put in familiar words of art, but merely approved resort to martial law for the suppression of "rebellion," "sedition," or perhaps "mutinies." The North Carolina Charter of 1665 was unusually explicit; but it, like the others, does not use traditional language when it confers power to exercise martial law against any mutinous and seditious persons of these parts; such as shall refuse to submit themselves to their government, or shall refuse to serve in the war, or shall fly to the enemy, or forsake their colours or ensigns, or be loiterers, or stragglers, or otherwise offending against law, custom, or military discipline.2
The Laws of New Haven Colony contained this provision, which has no resemblance to any familiar English model:
If any person shall conspire, and attempt any invasion, insurrection, or publick Rebellion against this Jurisdiction, or shall endeavour to surprize, or seize any Plantation, or Town, any Fortification, Platform, or any great Guns, provided for the defence of the Jurisdiction, or any Plantation therein; or shall treacherously and perfidiously attempt the alteration and subversion of the frame of policy, or fundamentall Government laid, and setled for this Jurisdiction, he or they shall be put to death. Num. 16. 2 Sam. 18. 2 Sam. 20. Or if any person shall consent unto any such mischievous practice, or by the space of foure and twenty houres conceale it, not giving notice thereof to some Magistrate, if there be any Magistrate in the Plantation, or place where he liveth, or if none, to some Deputy for the Jurisdiction, or to the Constable of the place, that the publick safety may be seasonably provided for, he shall be put to death, or severely punished, as the Court of Magistrates weighing all circumstances shall determine.3
The biblical citations suggest that this provision was not drawn with any primary attention to English materials. A very similar provision was contained in the General Laws of Connecticut (1673), which under the heading "Capital Laws" declared:
12. If any person shall conspire or attempt any Invasion, Insurrection or publick Rebellion against this Colony, or shall Treacherously and Perfideously attempt the Alteration and Subversion of our Frame of Government Fundamentally established by His Majesties Gracious Charter Granted to this Colony, by endeavouring the betraying of the same into the hands of any forreign power, he shall be put to death.4
The Laws of the Colony of New Plymouth, in the revision of 1636, had merely included under "Capitall offences lyable to death," "Treason or rebellion against the person of the King, State or Commonwealth, either of England or these Colonies." But the General Laws and Liberties of New Plimouth Colony, 1671, in chapter II, "Capital Laws," expanded the definition in terms like those of the New Haven act:
3. Treason against the Person of our Soveraign Lord the King, the State and Common-wealth of England, shall be punished by death.
4. That whosoever shall Conspire and Attempt any Invasion, Insurrection, or Publick Rebellion against this Jurisdiction, or the Surprizal of any Town, Plantation, Fortification or Ammunition, therein provided for the safety thereof, or shall Treacherously and Perfidiously Attempt and Endeavour the Alteration and Subversion of the Fundamental Frame and Constitutions of this Government; every such Person shall be put to Death.5
The last provision was in substance included in The General Laws and Liberties of Massachusetts Bay (May, 1678), with about the same biblical citations as in the New Haven provision, and in the Duke of York's Laws (1665-1675), compiled from the statutes for the government of the other northern English colonies in America by the first English governor, Nicolls, as well as in the criminal code adopted in 1668 by Carteret's Assembly in New Jersey and the General Laws and Liberties of the Province of New Hampshire, of 1679.6
The bulk of colonial legislation on treason, including the later statutes in the northern colonies, looks to English law for the definition of the offense. Some of these acts adopt the phraseology of the Statute of 25 Edward III, with additions inspired by local problems. The earliest indication of this reliance on the Statute of Edward seems to be the text of "An Act for Treasons" which was considered, but not passed, at the session of the Maryland General Assembly in February-March, 1638. Bacon tells us:
By this Bill the following Offences were to be adjudged Treasons within this Province, viz. To compass or conspire the Death of the King, or the Queen his Wife, or of his Son and Heir; or to levy War against his Majesty, or to counterfeit the King's Great or Privy Seal, or his Coin; or to join or adhere to any foreign Prince or State, being a professed Enemy of his Majesty, in any Practice or Attempt against his said Majesty: Or to compass, conspire, or cause the Death of the Lord Proprietary within this Province, or of his Lieut. General for the Time being, (in Absence of his Lordship,) or to join, adhere or confederate with any Indians, or any foreign Prince or Governor to the invading of this Province, or disheriting the Lord Proprietary of his Seignory and Dominion therein. All Offences of Treason to be punished by Drawing, Hanging and Quartering of a Man, and Burning of a Woman; the Offender's Blood to be corrupted, and to forfeit all his Lands, Tenements, Goods, &c. to his Lordship. But Punishment of Death to be inflicted on a Lord of a Manor by Beheading.7
The Connecticut Acts and Laws (1702) added to the special provisions already noted in the laws of that colony the more familiar declarations:
That if any person or persons, shall compass or imagine the Death of our Soveraign Lord the KING, or of our Lady the QUEEN, or of the Heir apparent to the Crown; or if any person shall leavy War against our Lord the KING, or be adherent to the Kings Enemies, giving them aid, and comfort in the Realm, or elsewhere, and thereof be probably attainted of open deed by His Peers, upon the Testimony of two Lawful and Credible Witnesses upon Oath, brought before the offender face to face, at the time of his arraignment; or voluntary confession of the party arraigned. Or if any person or persons shall counterfeit the Kings Great Seal, or privy Seal, and thereof be duely convicted, as aforesaid, then every such person and persons, so as aforesaid Offending, shall be deemed, declared, and adjudged, to be Traitors, and shall suffer pains of Death, and also lose and forfeit as in cases of High Treason.
And be it further Enacted by the Authority aforesaid, That the Tryal of all, and every person and persons whatsoever, accused, indicted and prosecuted for High Treason, and misprission of such Treason, shall be regulated according to Act of Parliament, made in the Seventh year of His present Majesties Reign, Entituled, An Act for Regulating of Tryals in Cases of Treason and Misprission of Treason; and the party so accused, indicted and prosecuted, to be allowed the benefits and priviledges, in and by the said Act granted and declared.8
Similar legislation had been passed in the Massachusetts Bay Colony in 1692 and 1696, and acts of 1706 and 1744 likewise incorporated the procedural guaranties of the statute of 7 William III into more specific legislation directed against "traiterous correspondence with his Majesty's enemies."9 In New Hampshire, the Act of May 15, 1714, followed the Connecticut and Massachusetts pattern.10
More numerous were provisions which, in varying terms, declared that the offense of treason should be defined, proceeded against and punished as under the laws of England. Although some of these acts in terms seem limited to incorporating the procedural or penalty provisions of the English law, they evidence a general inclination to look to that law for guidance, and none of them contains anything denying the applicability of English concepts of the scope of the offense. Such legislation is found in Delaware, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, and possibly Virginia. Of the colonies, only Georgia and New Jersey seem not to have adopted legislation of one of these types.11
Surveillance exercised by the authorities in the mother country served, further, to enforce awareness of the English law of treason in the definition of the offense in America. Thus, although the Massachusetts act of 1692 already referred to had substantially copied the language of the Statute of Edward III, it was disallowed by the Privy Council, on August 22, 1695, because in ye Article of Treason no punishment is inflicted for counterfeiting the Great Seal of England or the seal of ye Province nor is that article agreeable to the statute of the 25th of Edward the third in relation to Treason.12
The colonial legislature remedied the objections in the act of 1696. Again, the Commissioners for Trade and Plantations objected to the Pennsylvania Act of November 27, 1700, which declared it an offense punishable by forfeiture of half the offender's property or by one year's imprisonment to compass the death of the proprietary and governor. The Commissioners stated that: "We think this act not proper to be laid before Her Majesty, the proprietary and governor having already the same protection by law as other Her Majesty's subjects." Accordingly, the Queen in Council repealed the act.13
In New York, the Act of May 6, 1691, abjuring the royal house of Stuart, had declared it treason "by force of arms or otherwise to disturb the peace good and quiet of this their Majestyes Government as it is now Established." The home authorities found this act objectionably broad and vague, and instructions were sent the governor to procure its repeal. It was, hence, repealed by the Act of June 27, 1704, whose recital reflects an influence upon the colonists to look for their law to England in this regard:
whereas her most sacred Majesty hath been graciously pleased out of her princely Care for the good and Safety of her Subjects in their Lives and Estates to observe in her Intruccons to the Governor that the meaning of the said Clause hath been of late misinterpreted to the oppression of her Subjects, and is pleased to direct that for preventing the like abuses for the future the said Clause should be repealed the Laws of England having Sufficiently provided for the true purposes thereof.14
King v. Bayard, a prosecution in New York in 1702 under the Act of 1691 just noted, is the only pre-Revolutionary case of which we have an extensive record. Though the issues centered on the interpretation of the New York act, which was not couched in familiar English statutory terms, the defense resorted to Coke and the principal English statutes to evolve a theory of restrictive construction of treason legislation. 15 Law libraries in the colonies were almost nonexistent until the end of the 17th century, but from then until the Revolution, English treatises, statute books and law reports became more accessible, and it is reasonable to assume that leading lawyers of the period had opportunity, both in the legal education which some enjoyed in England, and in the books available in the colonies, to familiarize themselves with much that was written on the subject. The Commonplace Book of James Wilson contains quite extensive notes on the doctrines of the law of treason, obviously reflecting the use of the English lawbooks.16
All of this points to the fact that the several colonies drew on the general concepts of English law for the definition of treason and the incidents of its prosecution. The evidence is too scant, however, to justify any confident verdict as to how detailed was the knowledge of the mother country's law and experience in the matter; and it is consistent with the general history of the colonies' development to believe that local experience was the most substantial contributor to the attitudes of policy and the doctrines to be found here.
The striking characteristic of all of the pre-Revolutionary legislation in the colonies is the evident emphasis on the safety of the state or government, and the subordinate role of any concern for the liberties of the individual. Whereas the outstanding feature of the treason clause placed in the Constitution of the United States is that it is on its face restrictive of the scope of the offense, the emphasis of colonial legislation is almost wholly affirmative. This is not surprising. Relatively weak and remote settlements, necessarily alert to the nearness of hostile empires and Indian tribes, would naturally think first in terms of positive defense against external enemies. The implications of the utility of the law of treason against domestic upset would also be mainly favorable to the official and landed or wealthy mercantile classes which dominated political affairs in the various colonies. Such laws as those passed at very early dates in the colonies north of Maryland would thus seem to have very practical explanations, and not to be designed merely to complete the logical symmetry of paper codes. The practical bases for the positive character of the colonial laws are further evidenced by the tendency for additional legislation to appear at the time of foreign wars or domestic disturbances.17
The best evidence that the prevailing policy was concern for the safety of the state or government and not the careful protection of the individual citizen is in the types of conduct which the statutes declared treasonable. It has been noted that broad authority to employ martial law against "insurrection," "rebellion," "mutiny," or "sedition" was commonly conferred in original charters or proprietary grants. The crime of compassing the death of the king a notable omission in the treason definition finally placed in the Constitution of the United States was copied from the Statute of Edward III by Connecticut, Maryland, Massachusetts Bay, and New Hampshire; and was in effect adopted by the seven other colonies whose legislation recognized, in one form or another, the applicability of the English law of treason within their limits.
Of course, it might be contended that since the basic English Statute of Edward III has been traditionally praised as setting limits to a dangerously vague common law of treason, the mere adoption of the English laws descending from this beneficent act showed a restrictive intent on the part of colonial legislatures. In view of the practical extension of the vague categories of the Statute of Edward III by the English courts, however, this argument seems somewhat artificial, especially as applied to governments which had reason to be keenly concerned for their safety from external foes. The only plausible reason for adopting English law offered by the statute books is the claim of the "common law" as the "birthright of English subjects" in the acts by which Delaware and Pennsylvania adopted the English statutes of treason.18
Maryland and Pennsylvania went further than other colonies and made it a state offense to compass the death of the proprietor. The Pennsylvania act, as was noted above, was repealed by the Queen in Council, for a reason which reflects a desire to curb the political pretensions of the colony rather than to guard the citizen's liberties. The earlier Maryland act does not seem to have incurred the disapproval of the Crown; but it was in effect for only three years. Its passage seems indicative of a climate of policy.19
The offense of levying war against the sovereign is given a broad definition in two ways in the colonial legislation. One of the major accomplishments of judicial construction of the Statute of Edward III in England was the eventual creation of the crime of treason by "constructive levying of war," the concerted effort, by violence, to set aside the laws or the authority of the government or to accomplish objects of general public policy outside the established procedures of governmental action. This was not left wholly to judicial construction, however, in the several early colonial statutes which included in their condemnation of treason the offenses of "insurrection," "publick Rebellion," or of attempting "the Alteration and Subversion of our Frame of Government Fundamentally established by His Majesties Gracious Charter," as well as "rebellion against the person of the King, State or Commonwealth, either of England or these Colonies," the "Endeavour by force of arms or otherwise to disturbe the peace good and quiet of this their Majestyes Government as it is now Established," or the speaking or writing of words questioning the King's dominion.20
The New York Act of 1691 was repealed under instructions from the Crown, because its vague terms had been "misinterpreted" to the oppression of the subjects; but even this unusual pronouncement in favor of the liberty of the citizen was immediately balanced in the repealing statute's declaration that the laws of England "sufficiently provided" for the suppression of domestic treason.21 Most of these acts broadly including domestic disturbance in the crime of treason antedate 1700, but there is no evidence that any were repealed or allowed to expire because they were believed to extend the scope of treason unduly. Moreover, during the 18th century all of the colonies which had passed such early, broad treason acts (except New Jersey), adopted or recognized the applicability of the terms of the Statute of Edward III under which English courts were then reinforcing the concept of "constructive levying of war." Quincy reports charges to the Grand Jury in 1765 and 1766 by the Chief Justice of the Province of Massachusetts Bay, in which the law is declared to be:
Levying War against the King is High Treason; as where People set about redressing public Wrongs; this, Gentlemen, the Law calls levying War against the King; because it is going in direct Opposition to the King's Authority, who is the Redresser of all Wrongs.22
The other respect in which the first colonial legislation expanded the offense of levying war was by including conspiracy to levy war. The English courts had early ruled that such conspiracy did not come within the Statute of Edward III. Again, the American legislation antedates 1700.23 But, again, it must be pointed out that during the 18th century all of these jurisdictions (except New Jersey) together with others, either copied the terms of the Statute of Edward III into their books, or recognized the applicability of English treason law within their boundaries, including the offense of compassing the king's death, which by now had been construed by the English courts in effect to cover conspiracy to levy war.24 It would be artificial to maintain that these colonies thereby consciously adopted all of the constructions of the king's courts; but it is equally true that this record cannot be taken to evidence an intent to narrow the scope of the offense.
Certain colonial statutes of the French and Indian Wars, following English models, suggest an extension of the bounds of the offense of adhering to the enemy, and have special interest, because they foreshadow legislation of the same type in the Revolutionary period. The Massachusetts Bay Act of August 31, 1706, "For preventing all traiterous correspondence with the French king, or his subjects, or the Indian enemy or rebels, and supplying them with warlike or other stores," declared it high treason to furnish provisions to the enemy, and also made it treason
if ... any person or persons shall, during the continuance of the present war with France, be convicted of holding a traiterous correspondence with any of her majesty's enemies, by letters or otherwise, whereby they shall give them intelligence tending to the damage of her majesty's subjects or interests, or to the benefit or advantage of the enemy.
It was likewise declared high treason
if any of her majesty's subjects within this province shall ... during the continuance of the present war with France, without license from her majesty's governour or commander-in-chief of this her majesty's province for the time being, by and with the advice and consent of the council, voluntarily go, repair or embarque in or upon any vessel or vessels, with an intention to go into, reside or inhabit in any of the dominions or territories of the said French king, or amongst any of the Indian enemy or rebels aforesaid....
The Act contained a proviso:
That nothing in this act contained shall be construed, intended, deemed or taken to extend to bar the necessary relief and supply of any French prisoners of war, or of any flagg of truce, or to the supply of the English prisoners in French or Indian hands; or for secret services made or done, at all times, by the direction of the governour, with the advice of the council; or to bar a present charitable relief to any of the enemy that by adversity may be cast on shoar upon this coast, for the preservation of life; intelligence thereof to be forthwith dispatch'd to the governour.25
The broad terms of this statute raise the interesting question, whether to convict under it, a specific intent to betray the colony must be shown. This is the implication, prima facie, of the prohibition of "traiterous" correspondence, but the adjective might also be taken to be adequately explained by what follows; and the remainder of the provision in terms condemns a correspondence which in fact conveys information tending to damage the colony or benefit the enemy, without mention of an intent thereby to betray the colony.
The terms of the next section, regarding unlicensed departure for enemy territory, include no innuendo of a showing of specific intent thereby to give aid or comfort to the enemy; an unlicensed departure on private business for profit or to go to family or friends would seem within the ban. Where the penalty of death and forfeiture of property is involved, a court would normally rule as a matter of course that a guilty mind was intended to be an element of the offense; but this argument here begs the question, which is whether in view of the likelihood of peril to the state, the guilty mind does not consist in the intention which puts the actor in so ambiguous a situation, regardless of any further showing of a specific motive to betray. That the act was intended to be taken in a broad sense, is suggested by the proviso, which excludes matters which it would otherwise seem needless to mention. Perhaps the strongest argument against the broad interpretation is that the offense of "traiterous correspondence" is linked in the act with that of selling or delivering provisions to the enemy, an offense which in wartime can hardly be treated as open to innocent explanation.
An act of substantially similar terms was passed June 26, 1744, in the same colony.26 These should be compared with the series of statutes beginning with the Act of March 29, 1755, which forbade citizens of the province "to hold any correspondence or communication with any inhabitants of Louisburgh or any other of the French settlements in North America, either by land or water," and penalized violation by forfeiture of vessel and cargo, and, for the vessel's master, loss of one ear and 39 lashes and deprivation of the right to hold any office of trust or honor under the province. Since the preamble recited that the statute was designed to prevent knowledge of gathering plans against Louisburgh from reaching the French, it seems particularly likely that its sweeping prohibition was meant to be taken without the requirement of showing a specific intent to betray.27
If the colonial legislation thus shows an almost unbroken trend to put the interest in community security first in defining the types of conduct which shall be deemed treasonable, it is equally true, however, that it displays a persistent concern for safeguarding the individual regarding the quantum of proof and the decencies of procedure. Certain early statutes required at least two witnesses to prove any capital offense. From the latter part of the 17th century on, in most of the colonies the two-witness requirement and the procedural guaranties laid down by the Statute of 7 William III in treason trials were expressly enacted by reference to that statute or to the English statutes on treason generally.28 The witness requirement of course meant simply a requirement of two witnesses without the specification, laid down subsequently in the United States Constitution, that they be to the same overt act. On the other hand, pursuant to the statute of William III, they must be witnesses to the same treasonable offense, and one witness to each of two separate, or at least different types, of treason, would not suffice.
The records of prosecutions or decisions in treason cases in the colonial period are too scanty to be of much help in seeing the trend of policy. In particular, nothing helpful has been found to illuminate the borderline cases of adherence to the enemy. Almost all the cases which had sufficient color and interest to cause the preservation of some record were cases of domestic insurrection "constructive levying of war." Where political difference rose to the degree of armed resistance that it did in Bacon's Rebellion, in Virginia, in 1675-76, there was clearly treason, if domestic disturbance were to be recognized as within the offense at all; the question of a wise executive clemency in the case is something again.29 On the other hand, there is evidence that there were cases of abuse by prosecutions for political differences which should not have been deemed to carry such a threat of subversion of the state as to be treasonable. Such a case seems the celebrated King v. Bayard, in New York in 1702.30 But there is a total lack of any specific evidence to show that such incidents were sufficiently numerous or outrageous to form a current of opinion that the scope of treason must be narrowed for the safety of the citizen. None of the restrictive arguments urged at the time of the drafting and ratification of the Federal Constitution is based on an appeal to American colonial experience in this regard.
(b) The Revolution: 1775-1783
As a matter of law, the Revolution called for new legislation on treason, for new political entities had arisen to claim allegiance, betrayal of which was treason.31 As a matter of fact, the dangers from disaffected persons in the colonies, and in the new states, were so clear and pressing as naturally to produce legislative reactions. Scattered provisions in the new state constitutions banned legislative attainders, abolished corruption of blood as a penalty, limited the pardoning power of the executive, or required trial in the county where the offense was committed; but none spoke of the scope of the offense or the nature of its proof. New statutes in most states undertook to define the offense and prescribe for proof and trial procedure; and about this nucleus clustered other legislation, sometimes elaborating the scope of the crime, sometimes creating ancillary offenses disloyal utterances, traffic with the enemy, confiscation of property of disaffected persons which help indicate the views of policy with which the offense was approached. Summary executive action amounting to less than the full penalty for treason finds frequent reflection in the histories of the times; but, as in the earlier period, records of trials for treason are scant and do not contribute as much as the statutory material to outlining the attitudes taken towards the crime.32
The Revolution does not break the thread of continuity with traditional English materials defining the scope of treason. When the Continental Congress, on June 24, 1776, adopting the recommendation of its "Committee on Spies," recommended to the colonies that they pass treason legislation, it used the familiar terms of the Statute of Edward III, with a suggestion of the evidentiary requirements of the Statute of 7 William III:
Resolved, That all persons abiding within any of the United Colonies, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of such colony; and that all persons passing through, visiting, or make [sic] a temporary stay in any of the said colonies, being entitled to the protection of the laws during the time of such passage, visitation, or temporary stay, owe, during the same time, allegiance thereto:
That all persons, members of, or owing allegiance to any of the United Colonies, as before described, who shall levy war against any of the said colonies within the same, or be adherent to the king of Great Britain, or others the enemies of the said colonies, or any of them, within the same, giving to him or them aid and comfort, are guilty of treason against such colony:
That it be recommended to the legislatures of the several United Colonies, to pass laws for punishing, in such manner as to them shall seem fit, such persons before described, as shall be proveably attainted of open deed, by people of their condition, of any of the treasons before described.33
The committee which had recommended the resolutions included John Adams, Thomas Jefferson, John Rutledge, James Wilson and Robert Livingston. The familiar words of the resolutions apart, it would be incredible that this distinguished group of lawyers and students of the law did not draft their suggestions with a background of English law in mind, and at least in the case of Jefferson and Wilson we know that they had previous familiarity with English materials.34
In the course of the next year, the advice of the Continental Congress was taken by most of the states, which adopted basic statutes employing the recommended formula. In the minority of states which anticipated the Congressional suggestion, or thereafter adopted substantially differing legislation, the key definition of the offense was still in terms similar to the Statute of Edward III.35 Moreover, the terms of subsidiary legislation punishing disloyal utterances, sometimes as treason, sometimes as lesser offenses, suggest analogies in test oath provisions which the colonial laws had adopted from England.36
The few treason cases of the period, reported in the volumes of Dallas, show counsel to be familiar with the basic English statutes and treatises; but it may be significant of the limitations of local law libraries that in his argument in Respublica v. Carlisle, in 1778, the Attorney General of Pennsylvania cites Lord Preston's case from Foster's treatise and not from the reports. Similarly, Chief Justice McKean's notes of the argument made by James Wilson for the defense in the Carlisle case show Wilson as relying on the English statutes and treatises, with no mention of any citation to the reports.37 But, if American lawyers and statesmen did not have the detailed development of English judge-made law at their finger tips, the evidence and the probabilities nevertheless clearly establish that they drew their ideas of the scope of the offense and the nature of proceedings therein from important English materials.
Continuity with the colonial period also marks the time of the Revolution with respect to the definition of the scope of the offense. The struggle with Great Britain was bitterly fought and the outcome long in doubt, with neighbor divided from neighbor and suspicion prevalent. In this atmosphere, it was to be expected that the dominant emphasis, as in the preceding period, would be on the security of the state rather than the liberty of the individual.
However, the break with England itself produced the first manifest distrust of the abuse of treason trials, and the Revolutionary years show the definite beginnings of the wary policy which was to find expression in the Federal Constitution. In his draft of "Instructions for the Deputies appointed to meet in General Congress on the part of this Colony,"38 Thomas Jefferson raised the issue of the definition of treason. Noting General Gage's proclamation, in Massachusetts, declaring it treason for the inhabitants to assemble to consider grievances and to form associations in this connection, Jefferson argued that if he considers himself as acting in the character of his Majesty's representative, we would remind him that the statute 25th, Edward the Third has expressed and defined all treasonable offences, and that the legislature of Great Britain had declared, that no offence shall be construed to be treason, but such as is pointed out by that statute, and that this was done to take out of the hands of tyrannical Kings, and of weak and wicked Ministers, that deadly weapon, which constructive treason had furnished them with, and which had drawn the blood of the best and honestest men in the kingdom.39
The burden of complaint with regard to the law of treason, so far as the great public debate was concerned, related, however, to an important matter of procedure. Among the grievances recited by the Continental Congress in the preamble to its resolutions declaring the rights of the colonies, adopted October 14, 1774, was the fact that it has lately been resolved in Parliament, that by force of a statute, made in the thirty-fifth year of the reign of king Henry the eighth, colonists may be transported to England, and tried there upon accusations for treasons, and misprisions, or concealments of treasons committed in the colonies; and by a late statute, such trials have been directed in cases therein mentioned.40
Abuse of treason trials was not listed, in explicit terms, by the Declaration of Independence among its charges of oppressive conduct, but both the scope of prosecutions threatened and the unfairness of trials in remote England seem to be protested in the complaint "For transporting us beyond seas to be tried for pretended offenses.... "41
Jefferson participated in drafting both the treason act which the Congress recommended to the colonies on June 24, 1776, and the Virginia treason statute of October, 1776. There seems to be no record of the policy deliberations of the draftsmen of these measures. It was pointed out in the analysis of the colonial legislation that the mere use of the terms of the Statute of Edward III is ambiguous on the issue of extensive versus restrictive intent.42 The situation may by this time, however, have been altered, since, as Jefferson's essay of 1774 shows, there was now a political reason to emphasize the tradition which makes the Statute of Edward a restrictive act. Moreover, the new American treason acts included no provision analogous to that of compassing the king's death. This omission was of course logically explainable on the ground that in a republic there was no proper place for an analogous offense, that the state alone, and not the head of the state, was to be given the protection of this dread penalty, and that it was adequately protected by the provisions against levying war or adhering to enemies. There seems to be no contemporary exposition of this theory, however, and its logic is a bit too pat to seem a convincing explanation of the rather haphazard processes of state legislation of that day.43 It is altogether likely that in most states, the offense of compassing the death of the king was dropped for no more elaborate reason than that there was no longer a king. On the other hand, one cannot make such assumptions about legislation in the drawing of which Thomas Jefferson had a hand. We may draw some further light from the notes which Jefferson wrote to Chancellor Wythe, on November 1, 1778, regarding Jefferson's proposed "bill for proportioning Crimes and Punishments, in cases heretofore Capital." Jefferson proposed a section providing (footnotes are his):
2If a man do levy war3 against the Commonwealth [in the same], or be adherent to the enemies of the Commonwealth [within the same]4, giving to them aid or comfort in the Commonwealth, or elsewhere, and thereof be convicted of open deed, by the evidence of two sufficient witnesses, or his own voluntary confession, the said cases, and no5 others, shall be adjudged treasons which extend to the Commonwealth, and the person so convicted shall suffer death, by hanging, and shall forfeit his lands and goods to the Commonwealth.
In his footnotes, Jefferson explained the policies behind his draftsmanship:
225 E. 3. st. 5 c. 2. 7. W. 3. c. 3 § 2.
3Though the crime of an accomplice in treason is not here described, yet, Lord Coke says, the partaking and maintaining a treason herein described, makes him a principal in that treason: it being a rule that in treason all are principals. 3 Inst. 138. 2 Inst. 590. 1 H. 6.5.
4These words in the English statute narrow its operation. A man adhering to the enemies of the Commonwealth, in a foreign country, would certainly not be guilty of treason with us, if these words be retained. The convictions of treason of that kind in England have been under that branch of the statute which makes the compassing the king's death treason. Foster 196. 197. But as we omit that branch, we must by other means reach this flagrant case.
5The stat. 25 E. 3. directs all other cases of treasons to await the opinion of Parliament. This has the effect of negative words, excluding all other treasons. As we drop that part of the statute, we must, by negative words, prevent an inundation of common law treasons. I strike out the word 'it', therefore, and insert 'the said cases, and no others.' Quaere, how far those negative words may affect the case of accomplices above mentioned? Though if their case was within the statute, so as that it needed not await the opinion of Parliament, it should seem to be also within our act, so as not to be ousted by the negative words.44
From this it appears that Jefferson was alert to the fact that the law of "constructive treasons" had grown in important cases under the "compassing" phraseology which the American acts had omitted; and that in his eyes it was not the clauses stating particular types of treasonable conduct, so much as the provision requiring parliamentary action on novel cases, that gave the Statute of Edward III its restrictive character. Foreshadowing his later distrust of judicial lawmaking, Jefferson saw the need of new limiting language, if there were not to be new "common law," i.e., judge-made treasons. Plainly, in 1778 he favored a general policy of limiting the scope of the offense. On the other hand, like the draftsmen of the Federal Constitution, he wished the law to give firm protection to the state within the area embraced by the definition: hence his extended definition of "adhering to the enemy." And his analysis of the liability of accomplices introduces a most important limitation on his general restrictive approach, for he is apparently ready to accept the words of 25 Edward III c. 2 plus at least some of the gloss put upon them by the English judges. In the letter transmitting his draft bill on punishments to Chancellor Wythe, Jefferson explained his general approach in this regard:
In its style, I have aimed at accuracy, brevity, and simplicity, preserving, however, the very words of the established law, wherever their meaning had been sanctioned by judicial decisions, or rendered technical by usage.... And I must pray you to be as watchful over what I have not said, as what is said; for the omissions of this bill have all their positive meaning. I have thought it better to drop, in silence, the laws we mean to discontinue, and let them be swept away by the general negative words of this, than to detail them in clauses of express repeal....45
To use words of art is a natural inclination in a professional draftsman; but in this case it obviously makes possible considerable nullification of the policy of limiting the bounds of the crime.
Whether or not his ideas directly or indirectly reached any of the framers at Philadelphia, the trend of Jefferson's thought so plainly resembles that of the restrictive clause inserted in the Federal Constitution as to suggest a kind of thinking which must have been in the air for some time before 1787. But the Revolutionary period gives us more direct testimony on this point, from one of the men who drew the constitutional provision. In 1778, in Philadelphia, spurred by the indignation of patriots, the commonwealth prosecuted for treason several persons who had had various relations with the British during their occupation of that city. James Wilson, leading figure on the American side, was also a leader of the bar, and, moreover, a fundamentally conservative man not in sympathy with the more radical and vociferous wing of the patriotic movement. The accused had been men of some standing, and much contemporary, as well as subsequent, opinion was that they were handled with unjust severity. There is, therefore, room to believe that, as one of the defense counsel in this group of cases, Wilson spoke with more than mere advocate's zeal. Like Jefferson, he now saw a restrictive policy to be deduced from the Statute of Edward III.46
None of the decisions in the Pennsylvania treason trials mounted to the level of a legal classic, but the opinions are marked with judicial restraint and it appears that the court was careful of the rights of the defendants. However, in the opinions in the Malin and Roberts cases in which alone does the court discuss the scope of the offense the rulings tend to extend the limits of the crime. In the Malin case the defendant, mistaking a corps of American troops for British, went over to them. The Attorney General offered evidence of the defendant's words to prove his mistake and real intent. Sustaining the defense objection to the introduction of such evidence, the court offered the dubious explanation, that there was no "act" of treason, but admitted the evidence for another purpose:
No evidence of words, relative to the mistake of the American troops, can be admitted; for any adherence to them, though contrary to the design of the party, cannot possibly come within the idea of treason. But, as it appears that the prisoner was actually with the enemy, at another time, words indicating his intention to join them are proper testimony, to explain the motives upon which that intention was afterwards carried into effect.47
In the Roberts case, the court agreed with the defense contention that under the Pennsylvania statute penalizing the "persuading the others to enlist" in the enemy army, a case was not made out where it appeared that the person approached refused so to enlist. However, under the charge of adhering to the enemy by himself enlisting, the court noted that "There is proof of an overt act, that the prisoner did enlist," and said that the evidence of his unsuccessful attempt to persuade the other to enlist "is proper to show quo animo the prisoner himself joined the British forces."48 Both cases plainly draw a line between proof of the requisite overt act and proof of the intent. The practical effect of such an analysis would seem to be to broaden the types of conduct which may be relied on as the overt act necessary to make out the crime.
Thus the period of the Revolution introduces cautionary notes regarding the scope of "treason" such as were not seen in the colonial era; but the evidences of the new trend are only suggestive and wavering in their implications. The burden of the story remains the security of the state.
The clearest complaint of the Declaration of Independence, it has been seen, was with reference to oppressive trial practice regarding treason, rather than to the breadth of the crime. There is no evidence that the colonial period had left a specific legacy of fears about abuses in treason trials, though there had quite clearly been cases of such abuse. It is, therefore, not surprising to find that none of the new state constitutions, prior to 1790, includes any limitation on the scope of the offense or the type or amount of proof.49
The use of the terms of the Statute of Edward III in the basic treason statutes of almost all the states may now fairly be argued to have an extensive significance that we cannot be so sure of in earlier usage. By 1776-1778 the broad pattern of construction of its phrases by the English courts was complete. We have seen evidence that this learning was familiar to American lawyers at least through the standard treatises, and that the most skilled draftsman of the day used the old statutory terms with intent to take them with at least some of the gloss which English judges had put upon them. The Maryland legislature also made this approach explicit in its Act of April 20, 1777, declaring, after it had adopted the well-known language concerning the levying of war and adhering to the enemy, that "the several crimes aforesaid shall receive the same constructions that have been given to such of the said crimes as are enumerated in the statute of Edward the third, commonly called the statute of treasons."50
Moreover, none of the state statutes of the Revolution used the sort of negative language which Jefferson, in 1778, or the framers of the Federal Constitution, in 1787, regarded as of critical importance to indicate a cautious hedging about of the offense. In a supplementary treason act of October 22, 1779, the New York legislature provided
That besides the several Matters by the Law of England, declared to be Evidence and Overt Acts of High Treason, in adhering to the King's Enemies; and which are hereby declared to be Evidence and Overt Acts of High Treason, in adhering to the Enemies of the People of this State as Sovereign thereof; the following Matters shall be and are hereby declared to be Evidence and Overt Acts, of adhering to the Enemies of the People of this State.... 51
If one looks at the specific categories of conduct condemned as betrayal of the state, the picture is clearly one of a broad effort to safeguard the community with little tenderness for the individual's choices or dissents. Provisions in Pennsylvania, South Carolina and Vermont expressly attacked domestic levy of war in terms reminiscent of the early 17th century acts in the northern colonies.52 The typical basic treason statutes, it is true, did not undertake to enact eo nomine the law of constructive levy of war; but, as has been suggested, at this late date the fair inference is that the main outlines of English judicial construction of Edward III's statute were intended by those who used its words. The threat of the external enemy naturally predominates in this period, but the colonial period had left some tradition of the use of the treason offense against domestic disturbance.
We have seen that conspiracy to levy war was expressly included in a number of 17th century colonial statutes, and have suggested that though this language disappears in the 18th century books, it is replaced by the provisions of the Statute of Edward III, including that against compassing the death of the king, under which the English courts managed to bring conspiracies to levy war. The omission of any terms analogous to the "compassing" clause in the 1776-1778 statutes would seem to bar including conspiracy to levy war within their scope. In view of the obviously inexpert character of much state legislation in this period, one may doubt the extent to which this result would actually be in the minds of local legislators, few of whom were likely to approach their problems with the technical skill of Jefferson. In any case, it is noteworthy that in about half of the states, conspiracy to levy war was expressly included in the treason statutes, for the first time since the 1660's, and that related statutes add what in effect are offenses of conspiring to adhere to the enemy, giving him aid and comfort.53
Contact with the enemy was the subject of much explicit attention. Some statutes, clearly requiring a showing of specific intent to betray, penalize the conveying of "intelligence" or the holding of "correspondence" "for betraying this State, or the United States, into the Hands or Power of any foreign Enemy."54 Others penalize the "carrying on a treasonable and treacherous Correspondence" with an enemy.55 Less clearcut were those acts declaring those persons guilty of treason who were "adherent to ... the enemies of this State within the same, or to the Enemies of the United States ... giving to ... them Aid or Comfort, or by giving to ... them Advice or Intelligence either by Letters, Messages, Words, Signs or Tokens, or in any way whatsoever, or by procuring for, or furnishing to ... them any Kind of Provisions or Warlike Stores... ,"56 This language might be interpreted to cover the knowing conveyance of information or supplies, without regard to any showing that the conduct was part of a plot to betray the country. In its context in the basic treason acts of the states concerned, however, and in view of the death penalty attached, such language would probably be construed to require a showing of intent to aid the enemy for the defeat or overthrow of the government. Where the legislatures were content to impose less drastic penalties, however, they quite clearly punished persons for the mere fact of voluntary, unauthorized contact with the enemy. The Maryland Act of April 20, 1777, provided that
if any subject or inhabitant of this state, shall write or convey any letter, or send or carry any message, to any person employed in the service of Great-Britain against the United States, or any of them, without the leave of the governor of this state, or some one of the general officers of the army of the United States, or shall knowingly receive or bring any letter or message from any such person, and shall not deliver or communicate the same, as soon as conveniently may be, to the governor, or some one of the judges or justices of the peace within this state, and shall be thereof convicted in any county court of this state, such person shall be fined not exceeding one hundred pounds current money, in the discretion of the court.57
And the Maryland Act of December 3, 1777, declared that
if any subject or inhabitant of this state shall go on board any vessel of war or transport belonging to the enemy, or to their camp, or to any city, town, port or place, within any of the United States, in their possession, without permission in writing from the governor and the council of this state, and if any subject or inhabitant of this state shall receive any protection for himself or property from the enemy, or anyone under their authority, such person, on conviction thereof in the general or any county court of this state, shall be fined by the court not exceeding the rate of ten pounds for every hundred pounds of property belonging to such person within this state; and if any person convicted of any of the offences aforesaid shall not have property within this state, valued and rated agreeable to the late assessment act at more than two hundred pounds, the court may fine such person at the rate aforesaid, and also adjudge him to be imprisoned for any term not exceeding one year, or to be whipped not exceeding thirty-nine lashes, or both, in their discretion.58
In Massachusetts, the Act of November 8, 1782, provided that
any Person, an Inhabitant of this State, voluntarily passing from this or any of the United States of America, to any Post or Place within the Continent of America in Possession of the Enemy, without Leave obtained from the Legislature of this State, or the Supreme Executive in the Recess of the General Court, such Person shall not afterwards be permitted to return again to this State, without Leave first obtained therefor from the Legislature, and shall forfeit all his Estate to the Use of the Commonwealth....
and, further, that if such a person returned without authorization he should be transported back to an enemy-controlled area, and if he return a second time, be imprisoned during the war.59
In two acts of 1775, Rhode Island first imposed a fine up to £500 or imprisonment up to one year, and subsequently decreed death and forfeiture of all property for any of its inhabitants who should act as pilots aboard any British ship or vessel.60
New Jersey legislation aimed at curbing trade with the enemy provides the most interesting legislation imposing severe penalties for contact or attempted contact with the enemy without a showing of a specific intent to betray the state. The Act of October 8, 1778, reciting that "many disaffected Subjects of this State do keep up an Intercourse and Communication with the Subjects or Troops of the King of Great-Britain, highly dangerous to the Publick Safety provided that any one owing allegiance to the state who should be taken on his "Way to the Lines or Encampments, or to any Place in the Possession of the Subjects or Troops" of the King, "with Intent to go into the same without a License, Permission or Passport" previously obtained from the authorities should be fined £50-£1000, or be imprisoned 3-12 months, or suffer such corporal punishment not extending to life or member as the court should deem fit. A fine up to £2000, or imprisonment to 18 months, or such corporal punishment not extending to life or member as the court should appoint were provided for any such person who should "voluntarily go into the Lines or Encampments, or to any Place in the Possession of the Subjects or Troops of the King of Great-Britain, without a License, Permission or Passport obtained as aforesaid." This act was many times renewed, and more painful or degrading punishments set.61
That the broad sweep of the statutes did not require a showing of specific treasonable intent was shown in the extraordinary proviso which a codifying act of June 24, 1782, felt it necessary to include:
That this Act shall not extend to prevent any commissioned Officer ... of Troops raised for the Defence of this State, with any Party of Men under his Command, from going into the Lines or Encampments of the Enemy or of their Adherents, or into any Place in their actual Power or Possession, for the Purpose of annoying the Enemy, or of apprehending such Persons as may be found going into or coming out of the said Lines or Places, or of seizing and securing all such Goods, Wares or Merchandize as may be attempted to be conveyed into, or brought out of the said Lines or Places, without legal Permission or Passport first obtained as aforesaid.62
A long series of legislation was capped by the Act of December 21, 1782. Reciting that the law was still being evaded, this act provided that all cattle found to the southeastward of a specified road "shall be deemed and taken as intended to supply the Enemy, and liable to Seizure and Condemnation," and required permits for the movement of cattle from out of state anywhere through the county of Bergen. Its second section provided that any live stock, provisions or naval stores conveyed or driven toward the enemy lines in specified counties after dark within five miles of any place in enemy control "shall be deemed and taken as intended for the Enemy, and liable to Seizure and Condemnation," together with the equipment used in conveying them, "any Passport or Permission for the same to the contrary notwithstanding." Section 3 stipulated:
That every Article of Provision or Merchandise, seized in any of the Creeks, Rivers, Bays, Meadows or Upland, in the Counties aforesaid, going towards the Enemy's Lines, or Places aforesaid, and that shall have passed on beyond the inhabited Dwellinghouses adjoining or nearest to the same, it shall be deemed and construed sufficient Evidence to prove that the same were going to the Enemy, and shall be condemned accordingly.
But the most drastic penalty was imposed by Section 5 against persons concerned with the movement of the suspect property:
That ... if any Person or Persons shall, with Firelocks, or other Weapons of War, be found carrying or conveying, or be aiding and assisting in the Conveyance thereof, of any Article or Thing prohibited by this or the above recited act [the codifying act], such Person or Persons shall be declared guilty of Felony, and on Conviction thereof, shall suffer death accordingly.63
In addition to the familiar phrases condemning the levying of war or the adhering to the enemy, the state statutes expressly declared treasonable certain rather clear forms of adherence, such as "joining their Armies," or "inlisting or persuading others to inlist for that Purpose," or "furnishing Enemies with Arms or Ammunition, Provision or any other Articles for such their Aid or Comfort," or "wilfully betraying, or voluntarily yielding or delivering any vessel belonging to this State or the United States to the Enemies of the United States of America." Likewise, the statutes punished as traitors those who have joined, or shall hereafter join the Enemies of this State, or put themselves under the Power and Protection of the said Enemies, who shall come into this State and rob or plunder any Person or Persons of their Goods and Effects, or shall burn any Dwelling House or other Building, or be aiding or assisting therein ... or such persons as maliciously, "with an intention to obstruct the service," dissuade others from enlisting in the army or navy of the United States, or with like malice, spread such false Rumours concerning the American Forces, or the Forces of the Enemy, as will tend to alienate the Affections of the People from the Government, or to terrify or discourage the good Subjects of this State, or to dispose them to favour the Pretensions of the Enemy ... or those who "shall take a Commission or Commissions from the King of Great Britain, or any under his Authority, or other the Enemies of this State, or the United States of America."64
These types of provision do not represent notable extensions of the general categories of treason, and, indeed, to the contrary, it has been suggested that the Pennsylvania Act of February 11, 1777, which tacks such specifications of treasonable acts onto the traditional provision against adherence to the enemy thereby implies an intention to limit the scope of that offense. Connecticut, North Carolina, and Vermont enacted similarly phrased statutes; obviously three of these were copies, though the evidence does not show clearly which was the original. Of the other states, however, nine passed basic treason acts containing the familiar, broad, adherence clause without limiting specifications; and Connecticut also had such an act on its books, enacted after its more limited statute and apparently not repealed by any of the reenactments of the more limited statute. The Pennsylvania-type act cannot, thus, be taken as representative of the basic treason legislation in the Revolutionary period. Moreover, such restrictive argument as may be drawn from its phrasing, viewed in isolation, carries little conviction as evidence of a prevailing climate of policy when that statute is put in the context of the severe test oath legislation, sedition and confiscation acts and like measures which stud the revolutionary statute books in all of the states. The abundance of such enactments suggests that legislative attention was at this time directed with overwhelming urgency towards the security of the new governments.65
Less clearcut, perhaps, are the New Jersey Acts of December 11, 1778, and October 3, 1782, which declared that those who had "voluntarily gone to, taken Refuge or continued with, or endeavored to continue with the Enemy aforesaid, and aid them by Counsel or otherwise" were guilty of high treason, and fixed penalties of forfeiture of estate and death.66 "Aid by Counsel" might be the same as conveying intelligence of military value, but the phrase was not necessarily that narrow and might include a wide range of dealing or conferring. Whatever be thought of this, the concept of treasonable adherence to the enemy was certainly given an extremely sweeping application in the legislation which imposed penalties ranging from heavy fines or jail sentences to the death sentence and complete forfeiture of property for the mere utterance of opinions denying the independent authority of the new states and asserting the continued sovereignty of the King. Typical of these acts was that passed as late as March 30, 1781, by New York:
WHEREAS, altho' adhering to the Enemies of this State, is by Law, High Treason against the People of this State; yet in Order more effectually to prevent an Adherence to the King of Great Britain, it is deemed requisite that farther Provision should be made by law; Be it therefore enacted ... That if any Person being a Citizen or Subject of this State, or of any of the United States of America, and abiding or residing within this State, shall maliciously, advisedly and directly, by preaching, teaching, speaking, writing, or printing, declare or maintain, that the King of Great Britain hath, or of Right ought to have, any Authority, or Dominion, in or over this State, or the Inhabitants thereof, or shall maliciously and advisedly seduce or persuade, or attempt to persuade or seduce any Inhabitant of this State, to renounce his or her Allegiance to this State, or to acknowledge Allegiance or Subjection to the King or Crown of Great Britain, or shall maliciously and advisedly declare or affirm, that he or she doth owe Allegiance to the King or Crown of Great Britain, and be convicted thereof, shall be adjudged guilty of Felony, and shall suffer the Pains and Penalties prescribed by Law in Cases of Felony without Benefit of Clergy....
Provided, nevertheless, That it shall and may be lawful for the Court before whom such Offender shall be convicted, if such Court shall deem it proper, instead of giving Judgment of Death, to order and direct that such Offender shall be sent, as soon as conveniently may be, to serve for the Term of three Years, on board of any Ship of War, belonging to this State, or to the United States, or to an Ally of the United States; and if any Offender so ordered by any such Court, to be sent to serve on board any such Ship of War for the Term aforesaid, shall desert from such Service and be found within this State, or any other of the United States, the Person so deserting shall be liable to be punished as a Person attainted of Felony without Benefit of Clergy....67
This type of legislation obviously breathes the spirit of hot partisanship, but the New York act is particularly interesting because it suggests that there may have been something more than sheer emotion behind so drastic a punishment of the mere expression of a political allegiance. The preamble emphasizes the need more effectually to prevent persons adhering to the enemy. In other words, the requisite overt act may be defined as conduct possibly many steps removed from an immediate threat to the state where the offending conduct is regarded as creating dangerously fertile ground for the commission of more tangible acts of betrayal. That the mere utterance of a political opinion is being penalized in these cases becomes even clearer in a statute such as that in Virginia, which declared the utterance of the opinion, or action upon it, to be equally offensive, providing a fine not exceeding £20,000 and imprisonment not exceeding five years if any person residing or being within this commonwealth shall ... by any word, open deed, or act, advisedly and willingly maintain and defend the authority, jurisdiction, or power, of the king or parliament of Great Britain, heretofore claimed and exercised within this colony, or shall attribute any such authority, jurisdiction, or power, to the king or parliament of Great Britain.68
Apart from their prima facie meaning, the terms of such statutes are obviously capable of being applied to sweep in all manner of incautious political talk in a time of stress. The readiness displayed to put the offense of treason to liberal use for the security of the new states is comparable to any but the most extreme instances of extension of the crime by statute or construction in England.
The broad extent of "treason" during the Revolution is demonstrated, finally, in the severe acts imposing forfeiture of estate, banishment, or, in some circumstances, the death penalty, upon persons who had withdrawn to enemy-controlled areas after the beginning of hostilities. In later and calmer years, judges looking with obvious disfavor on this harsh legislation and eager to apply strict construction to limit the extent of forfeitures thereunder, denied that these were "treason" acts. Those who left the newly independent states for British territory had not hitherto owed allegiance to the states, since the states had not previously existed as independent entities to claim allegiance. Those who withdrew were simply exercising a right recognized in international law to choose the country of their abode; and the states which took their property were simply exercising the basic right of any sovereign to determine the conditions on which "aliens" might hold property within his domain.69 The theory found some contemporary expression, as in the Rhode Island Act of October, 1779, which declared that a person who had withdrawn to British-controlled areas and had not returned and been received as a subject in the state, "shall be held, taken, deemed and judged to have voluntarily renounced all civil and political relation to each and every of the said United States, and be considered as an Alien."70
But even in this Act, the preamble's recital of the state's grievance against its former residents indicates that the taking of property under the act was viewed as a penal action rather than a colorless exercise of sovereign authority to define property rights. It was there asserted that
all countries have a Right to the personal Services of its [sic] Inhabitants, the greatest Exertions of whom, in their different Capacities, are especially requisite for the Defence and Protection of their Lives, Liberties and Properties, during the actual Invasion of Enemies; and a Refusal or withdrawing the same being against the Rights of human Society, and the being voluntarily adherent to public Enemies, by giving them Aid or Comfort, or the seeking of their Protection, amount to a total Renunciation of all former Rights, Privileges and Inheritances whatever: And whereas ... sundry of said Inhabitants, regardless of their Ties and Obligations aforesaid, have left their Habitations, joined and been adherent to the Enemies aforesaid, thereby giving them Aid and Comfort, or continued to reside in Places invaded by or in the Power of said Enemies, and have voluntarily aided or abetted them....
And the New Jersey Act of December 11, 1778, did not hesitate to declare "treason" to be the basis for the confiscation it ordained:
each and every Inhabitant of this State, seized or possessed of, interested in, or entitled unto, any Estate Real or Personal within the same, who hath since [April 19, 1775, and before October 4, 1776] ... aided and assisted the Enemies thereof, or of the United States, by joining their Armies within this State, or elsewhere, or who hath voluntarily gone to, taken Refuge or continued with, or endeavoured to continue with the Enemy aforesaid, and aid them by Counsel or otherwise, and who hath not since returned and become a Subject in Allegiance to the present Government, by taking the Oaths or Affirmations prescribed in the Act [of September 19, 1776] ... when required, each and every such Person is hereby declared to be guilty of High Treason against this State; and on Conviction thereof by Inquisition found and ... final Judgment thereon entered in Favour of the State, as herein after is declared, such Conviction shall amount to a full and absolute Forfeiture of such Person's Estate, both Real and Personal whatsoever within this State, to and for the Use and Benefit of the same: Provided always, That such Conviction shall not extend to affect the Person of any such Offender, but shall operate against his or her Estate only....71
Viewed in the history of the times, and, more particularly, in the context of other legislation abounding in the same statute books, it is clear that the Rhode Island preamble and the New Jersey declaration expressed the practical animus behind the confiscatory acts.
A few of the confiscation acts made the taking depend on a finding that the former owner had actively aided the enemy, in addition to withdrawing to the enemy's territory.72 Other banishing or confiscatory provisions are ambiguous, reciting that the action is based on the fact that the former owner has "joined" the enemy.73 But another class of statute, including about as many as the two previous classes together, stated as at least an alternative basis for confiscation, the mere finding that the former owner had in fact withdrawn to territory in enemy control, or had remained in an area which the enemy took over, or, being absent in English territory when hostilities began, had not returned. So far as these provisions in these acts were concerned, there was no need to show any further overt act of aid or comfort to the enemy, nor any specific intent to betray the state.74 Later judges evidently so interpreted the scope of these statutes.75
That this interpretation is not out of line with the temper of opinion in which this sort of legislation was being passed is indicated by the history of one part of the New York confiscation acts. The Act of October 9, 1780, imposed a tax upon any person whose minor son had joined the enemy since the Declaration of Independence, if the son at the time of joining the enemy was resident with his parents, and had not since returned voluntarily to reside in some part of the state not under enemy control. Being thus bluntly put, the act apparently imposed the tax regardless of any cooperating treasonable intent on the part of the parent. It might have been argued that such an intent element was supplied by a presumption of parental control of a minor son's actions in these circumstances. That this interpretation of the early statute is wrong was evidenced, however, by the Act of March 15, 1781, which, reciting that sons of parents themselves loyal to the American cause may have gone over to the enemy without parental knowledge or consent, provided opportunity for the parent to appear and show that the tax was thus unjustly levied on him.76
Severe as were most of the foregoing acts, they yet dealt out only banishment or forfeiture of property. There were in several states, however, statutes which reinforced initial judgments of banishment, based on withdrawal to enemy-controlled areas or refusal to swear allegiance to the state, by providing the death penalty if the individual should thereafter be found within the state.77
This analysis of the scope of the offense of treason during the Revolutionary period began by pointing out that, in contrast to the colonial era, there were some significant signs of the growth of an opinion that "treason" must be more carefully defined and limited. Taken in the context of the period as a whole, however, this note of skepticism was still subordinate to a broad and impulsive use of "treason" as the means by which to ward off what were viewed as extreme dangers to the security of the states.
There is little to be said regarding the procedural incidents of treason trials as set out in the laws of the Revolutionary period. Almost all the basic treason acts either required "the testimony of two lawful and credible witnesses" (without linking this to the proof of overt acts), or in substance adopted the language of the Act of 7 William III.78 There is no innovation, and certainly no hint of the type of two-witness requirement later inserted in the United States Constitution. Where provisions regarding the quantum of proof were omitted which was especially true of acts creating supplementary and novel definitions of treasonable offenses the obviously haphazard quality of legislative drafting makes it seem more likely due to inadvertence than to policy.79
1 Treason was declared to exist "In case where a man doth compass or imagine the death of our Lord the King, the Lady his Consort, or of their eldest son and heir, or if a man violate the King's Consort or the King's eldest daughter being unmarried, or the consort of the King's eldest son and heir And if a man levy war against our said Lord the King in his realm, or be adherent to the enemies of our Lord the King in the realm, giving to them aid and support in his realm or elsewhere, and thereof be attainted upon due proof of open deed by people of their condition." 25 Edw III, Stat 5, c. 2 (1350) Translated from the original French by Luder in 5 Howell's State Trials (1810) 971-77.
2 5 Thorpe, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws (1909) 2770, cf. 3 Thorpe, op. cit. 1833, 1866 (Massachusetts Bay), 5 Thorpe, op. cit. 3049, 3056, 3065, 3074 (Pennsylvania).
3. Laws of New Haven Colony (1656, Hartford ed. , 1858) *24.
4. The Book of the General Laws (Connecticut) (1673, reprint, 1865) 9.
5 Brigham, The Compact with the Charter and Laws of the Colony of New Plymouth (1836) 42, 244.
6 The Charters and General Laws of the Colony and Province of Massachusetts Bay (1814) c. XVIII, § 12, 1 Colonial Laws of New York (1664-1775) (1894) 20, Leaming and Spicer, Grants, Concessions, and Original Constitutions (1664-1702) of the Province of New-Jersey (1758) 80, 1 Laws of New Hampshire (Batchellored 1904) 12 The Duke of York's Laws were also applied in the area which became Pennsylvania, before 1682 See George, Nead and McCamant, Charter to William Penn and Laws of the Province of Pennsylvania (1879) iv, 15 Cf. the terms of the oath included in the instructions from the General Court of New Plymouth Colony to Thomas Prence, commissioned for erecting an orderly government among the inhabitants of the Kennebeck. "You shalbe true and faithfull to the State of England as it is now established and whereas you choose att present to Reside within the Goverment of New Plymouth you shall not doe or cause to be done any acte or actes directly or indirectly by land or water that shall or may tend to the destruction or overthrow of the whole or pane of this government that shallbee orderly erected or established; but shall contrary wise hinder oppose and descover such entents and purposes as tend thereunto to those that are in place for the time being that the Government may be enformed thereof with all convenient speed." Brigham, op. cit. supra note 5, at 322.
Another unconventional early definition of treason was laid down in Act I of the Virginia Grand Assembly, session of Oct. 10, 1649 Reciting that evilly disposed persons were defending the legality of the proceedings against Charles I and deducing that the existing government of the commonwealth was without legal authority, this act provided that any stranger or inhabitant who should "by reasoning, discourse or argument" defend or maintain the proceedings against the late king, "and being proved by competent witnes, shall be adjudged an accessory post factum, to the death of the aforesaid King, and shall be proceeded against for the same, according to the knowne lawes of England," and apparently adding a different offense of seditious speech that whoever by irreverent words should go about to blast the memory of the King should suffer such punishment as found suitable by the Governor and Council Moreover, the Act provided, whoever by words or speeches endeavors to insinuate any doubt regarding the right "of his Majesty that now is to the colony and all others of his dominions, as King, "such words and speeches shall be adjudged high treason." See I Hening, Statutes at Large (1823) 359, 360-61. But, "The submission of Virginia to the commonwealth soon afterward (1652) made this drastic law a dead letter...." Scott, Criminal Law in Colonial Virginia (1930) 155 Regarding the similarities in the early legislation of the colonies north of Maryland, see Journal of the Courts of Common Right and Chancery of East New Jersey, 1683-1702 (Edsall ed. , 1937) 113, 116.
7 Bacon, Laws of Maryland at Large (1637-1763) (1765), Assembly of Feb. 25-Mar. 19, 1638, No. 22 Bacon notes that at the previous General Assembly of Jan. 25-Mar. 24, 1637, the freemen, having rejected a "Body of Laws" drawn in England and transmitted by the proprietor to be passed in the colony, submitted to him a number of bills including No. 36, "A Bill for Treasons." These were never enacted, however, and copies of them have been lost.
Chancellor Kilty notes, "In the year 1642, an act was passed [Act of Aug. 1, 1642, c. 19, renewed until 1645 by Act of Sept 13, 1642, c. 45], ordaining punishment for certain greater capital offences, in which were comprised all offences done within the province, which are declared treasons by statute of 25 Edw 3, Ch 2, and all offences of conspiring the death or destruction, or of attempting any violence against the person of the lord proprietary, &c. or of holding any private intelligence with a declared enemy of the province, or of rising in arms or mutinying against the lord proprietor, &c. This act was at first of very short duration, but it was re-enacted at another session in the same year, and expired in 1645.
"An act was passed in 1649 (Ch 4,) for the punishment of certain offences against the peace and safety of the province, which related only to mutinous and seditious speeches, practices or attempts, with or without force.
"No other act respecting treason was passed in the province, and the necessity of enacting that of 1642, arose probably from the opinion at first entertained, that in criminal cases, the statutes of England did not extend to the province, and to the change of that opinion may be attributed, the circumstance of no further acts being passed on this subject." Kilty, A Report of All Such English Statutes, etc. (1811) 217-20. The Chancellor's remarks are part of a note to his recommendation that the Statute of Edward III be included in the list of English statutes drawn up by him at the request of the legislature, to be declared applicable in the State of Maryland.
8 Acts and Laws (1702) of His Majesties Colony of Connecticut (1702, reprint, 1901) 13-14. This revision, however, also continued the "Capital Laws" provision of 1673 (note 4 supra), and both types of treason provision appear in Acts and Laws (1715), (1743), (1750), (1769) The "Capital Laws" provision disappears with the first post-Revolutionary revision, in 1781.
9 Oct. 29, 1692, c. 19, 1 Acts and Resolves of the Province of Massachusetts Bay (1869-1909) 55 (disallowed by the Privy Council, Aug. 22, 1695, id. at 56, see note 12 infra), Dec. 8, 1696, c. 12, id. at 255, Aug. 31, 1706, c. 8, id. at 595, June 26, 1744, c. 6, 3 op. cit. 152, Mar. 29, 1755, c. 34, 3 op. cit. 814, cf. May, 1678, The Charters and General Laws of the Colony and Province of Massachusetts Bay (1814) c. XVIII See note 28 infra
10 Acts and Laws Passed by the General Court or Assembly of His Majesties Province of New Hampshire in New England (1716, reprint, 1885) 46 Despite its repeal by the Crown, Aug. 27, 1718, this act is continued in the compilations of 1726 and 1765 (same title as above), but is lacking in the compilation of 1771, with no explanation given See 2 Laws of New Hampshire (Batchellor ed. 1904) 141.
11 Delaware 1719, Laws, c. XXII, in 1 Laws of the State of Delaware (1700-1797) (1797) 64, and 1742, Laws, c. LXXXIV, id. at 225 New York June 27, 1704, 1 Colonial Laws (1664-1775) (1894) 575, Dec. 24, 1767, 4 op. cit. 953, 953n North Carolina 1711, Laws, c. I, 25 State Records of North Carolina (Clark ed. 1904-06) 152, 1715, Laws, c. XXXI, 23 op. cit. 38, 1715, Laws, c. LXVI, 23 op. cit. 94 (repealed, 1749, Laws, c. VI, 23 op. cit. 332), 1749, Laws, c. I, 23 op. cit. 317 Pennsylvania May 31, 1718, c. CCXXXVI.3 Statutes at Large (1682-1801) (1896-1915) 199 Rhode Island. "An ACT, regulating sundry Proceedings in the several Courts in this Colony" (noted as 1700, 1716, 1718, 1729, 1734, 1736, 1746, 1749, 1750 and 1760), in Acts and Laws of the English Colony of Rhode-Island and Providence-Plantations, in New-England, in America (1767) 55, see, "An Act for punishing Criminal Offences," 1728, Acts and Laws, in Acts and Laws of His Majesty's Colony of Rhode Island and Providence-Plantations, in America, 1663-1729 (1730) 169 South Carolina Dec. 12, 1712, No. 333, 1 Laws of Province (1736) 236, see Grimké, Public Laws of the State of South-Carolina (1790) 34 Virginia The applicability of English law seems fairly implied from references in Act I of the Grand Assembly Session of Oct. 10, 1649 (note 6 supra), and Act I of the Feb. 1676-7 session and other legislation of that session regarding Bacon's Rebellion, 2 Hening, Statutes at Large (1823) 366 ff. , Nov. , 1714, c. I, 4 op. cit. 51 See Digest of the Laws of the State of Georgia (1755-1798) (1800) 46.
The failure of a colonial legislature to enact a law on treason might be argued to mean simply that prosecutions must be conducted under the prevailing law of the mother country. This was the opinion of the Attorney General and Solicitor General regarding the proper procedure against alleged traitors in New Hampshire in 1775, the New Hampshire treason act having been disallowed by Order in Council in 1718 See Archbold's Pleading, Evidence & Practice in Criminal Cases (31st ed. , 1943) 1058n (a), quoted in the opinion of the Court of Criminal Appeal in Rex v. Casement,  1 K B 98, 143 On the other hand, there is no indication that because of this residual applicability of the English law in the colonies, the latter were ever held to be totally disabled from passing legislation on treason, and the contrary implication is to be drawn from the fact that such colonial acts as were disallowed were voided for more particularly specified reasons The applicability of English statutes in the colonies in the absence of adoption by local authority has of course been a much mooted point, and it seems unlikely that Americans would have agreed with the opinion of the English law officers in the significant year 1775 Cf. Batchellor, Introduction to 2 Laws of New Hampshire (1904) xvii-xviii.
12 See note 9 supra The Act of Dec. 8, 1696, was probably passed to meet the objections raised by the Privy Council (See note 9 supra). Apart from adding the offense of counterfeiting the Great Seal, the 1696 Act made it treasonable to compass the death of the heir apparent, or to give aid and comfort to an enemy "in the realm or elsewhere." Other changes seem to involve terminology only.
13 2 Statutes at Large (1682-1801) (1896-1915) 52, and n. , appl I, sect II 465 24 1 Colonial Laws (1664-1775) (1894) 223, 575, 1 Labaree, Royal Instructions to British Colonial Governors 1670-1776 (1935) 157, cf. Labaree, op. cit. 159 (repeal of Virginia legislation regarding Bacon's Rebellion) The Act thus disapproved in 1704 had, however, originally been confirmed by the King in Council, May 11, 1697 Ibid. See also Russell, Review of American Colonial Legislation by the King in Council (1915) 29, 104, Washburne, Imperial Control of the Administration of Justice in the Thirteen American Colonies, 1684-1776 (1923) 48.
As has been noted, the Duke of York's Laws, with the familiar "Capital Laws provisions against treason (see notes 4, 5, 6 supra), were included in the New Hampshire Act of Mar. 16, 1679 Batchellor noted that the authorities are in disagreement whether these laws were not subsequently disallowed by the Committee of Lords for Trade and Plantations I Laws of New Hampshire (1904) 10. At any rate the copy which he reproduces, from the English archives, bears marginal notations indicating disapproval of the provisions on the ground that the matters dealt with were "provided for" and hence that the provisions should be ' set aside." No explanatory ruling has been found in connection with the action of the Crown, Aug. 27, 1718, in repealing the New Hampshire treason act of May 15, 1714 See note 10 supra.
The acts of attainder and partial pardon passed by the Virginia assembly in the session of Feb. 1676-77 in consequence of Bacon's Rebellion were disapproved in general terms by the committee of the Privy Council because the narrowness of the pardon conflicted with the King's proclamation of amnesty and because the laws were deemed to exceed the legislative powers of the colonial government, and instructions to procure their repeal were, accordingly, given the new governor See Russell, op. cit. supra at 29-30, 1 Labaree, op. cit. supra at 159. The data are not explicit enough, perhaps, to count this as an example of royal check on colonial definition of the offense, it may, rather, constitute a curb on improper execution of the laws Cf. note 29 infra.
15 See The Trial of Colonel Nicholas Bayard in the Province of New-York for High Treason, 1702, in 14 Howell's State Trials (1812) 471, 478, 495, 499, 506, 10 Lawson, American State Trials (1918) 518, 533, 535, Goebel and Naughton, Law Enforcement in Colonial New York (1944) xxiii, xxv Though the record in Bayard's trial reflects familiarity with English trial procedure in treason cases, it may be suggestive of the limits of the material available that the able argument on the scope of the offense is drawn from English statutes and from Coke, without citation of reported decisions.
The best account of the history of treason prosecutions in a given colony is in Scott, Criminal Law in Colonial Virginia (1930) 154-71 (Virginia) Cf. Kilty, op. cit. supra note 7, 217-20 (Maryland) See also Chitwood, Justice in Colonial Virginia in 23 Johns Hopkins University Studies in Historical and Political Science Nos. 7-8 (1905) 20-21, Chumbley, Colonial Justice in Virginia (1938) 71, 126, Records of the Particular Court of Connecticut (1639-1663) (1928) 248, Hilkey, Legal Development in Colonial Mas sachusetts, 1630-1686 (1910) 97, Prince, An Examination of Peter's "Blue-Laws" (1898) 100-101.
16 See Aumann, The Changing American Legal System (1940) c. III, Goebel and Naughton, loc. cit. supra note 15, Hamlin, Legal Education in Colonial New York (1939) c. 5, cf., however, Morns, Studies in the History of American Law (1930) 44 ff. , 67, Warren, A History of the American Bar (1911) c. VIII.
17 For legislation reflecting tensions of the French and Indian Wars, see, in Connecticut 1743, Acts and Laws (1743, reprint, 1918) 520, Maryland May 25, 1705, c. V, and Apr. 15, 1707, c. I, Bacon, Laws of Maryland at Large (1765), Massachusetts Mar. 20, 1699-1700, c. 21, and Aug. 31, 1706, c. 8, June 26, 1744, c. 6, and Mar. 29, 1755, c. 34, 1 Acts and Resolves of the Province of Massachusetts Bay 401, 595, 3 id. at 152, 814, New York Dec. 23, 1755, 4 Colonial Laws (1664-1775) (1894) 8, Pennsylvania July 8, 1763, c. DI, 6 Statutes at Large (1682-1801) 297, Virginia April, 1757, c. II, 7 Hening, Statutes at Large (1820) 87 Legislative reflections of domestic disturbances include, in Maryland c. XXIV of the session of Apr. 6-29, 1650, Act of Nov. 15, 1678, c. XVIII, Bacon, op. cit. supra, New Jersey Declaration of the Proprietors, Dec. 6, 1672, Leaming and Spicer, op. cit. supra note 6, at 35, Acts and Proceedings of the Legislature of West-Jersey, Nov. 21-28, 1681, par XXI, op. cit. 433, Acts of 1703, c. III, in 1 Nevill, Acts of the General Assembly of the Province of New-Jersey (1703-1761) (1752) 5, New York May 6, 1691, 1 Colonial Laws, 1664-1775 (1894) 223, and Mar. 9, 1774, 5 op. cit. 647, 654, North Carolina 1711, Laws, c. I and 1715, Laws, c. XXXI, 25 State Records, op. cit. supra note 11, at 152 and 23 op. cit. 38, 94, 332, Virginia Feb. 1676-7, Act I, 2 Hening, op. cit. supra at 366, and April, 1684, Act II, 3 Hening, op. cit. 10 Legislation reflecting fundamental upheavals in the mother country includes, in Maryland June 3, 1715, c. XXX, and Aug. 10, 1716, c. V, Bacon, Laws of Maryland at Large (1765), New Jersey 1722, c. XXXIII, 1 Nevill, op. cit. supra New York Sept 21, 1744, 3 Colonial Laws, 1664-1775 (1894) 424, Rhode Island 1756 and 1766, Acts and Laws (1767), op. cit. supra note 11, at 6, "for the more effectual securing to his Majesty the Allegiance of his Subjects ' Not all of these laws define offenses as "treason," but such as do not do so are sufficiently related to treason acts in the purpose of state security and severity of penalties to be relevant evidence of the prevailing climate of policy.
18 See notes 7-11 supra, and also May, 1678, The General Laws and Liberties of Massachusetts Bay, c. XVIII, § 20, The Charters and General Laws, op. cit. supra note 6, and, in North Carolina, 1711, Laws, c. I, 25 State Records, op. cit. supra note 11, at 152, and 1715, Laws.c. XXXI, 23 op. cit. 38, 94, 332 The Delaware act is 1719, c. XXII, Laws of the State of Delaware, (1700-1797) (1797) 64 the Pennsylvania statute is May 31, 1718, c. CCXXXVI (note 11 supra) Cf. the remark of Chancellor Kilty, quoted note 28 infra, reflecting the common attitude after 1789.
19 The Pennsylvania Act of Nov. 27, 1700, c. XLVII (note 13 supra) enacted 'That if any person within this province or territories thereof shall compass, devise or endeavor the death, destruction or any bodily harm tending to the death or destruction, maim or wounding, imprisonment or restraint of the person of the proprietary and governor, in order to deprive or depose him of or from his government, or do stir up or assist any to invade this province or territories, such person being legally convicted thereof by the testimony of two or more credible witnesses proving the same, or by due course of law, shall forfeit half his estate real and personal, or suffer imprisonment during one whole year.
The alternative penalties seem oddly disproportionate, but the borrowing of the terms of the Statute of Edward III regarding compassing, the reference to the security of the colony, the inclusion of a two-witness requirement, and the possible severity of the forfeiture make this in substance a treason act, though not expressly declared so The act spells out forms of "compassing" which had to be developed by the constructions of the judges in England Does this imply a knowledge of the English doctrinal history? The Maryland Act of Aug. 1, 1642, we have only in Chancellor Kilty's description (note 7 supra) It expressly coupled the offense against the proprietor with enactment of the treasons defined by the Statute of Edward III.
20 In addition to the legislation cited in notes 3-6 supra, see the Maryland Acts of May 25, 1705 and Apr. 15, 1707, note 17 supra, the New York Act of May 6, 1691, note 14 supra, in Virginia, Act I of the session of Oct. 10, 1649, note 6 supra Cf. Nov. 15, 1678, Bacon, Laws of Maryland at Large, (1765), c. XVIII, Dec. 22, 1690, No. 53, 2 Statutes at Large of South Carolina (1837) 44.
The unconventional terms of several other acts are worth noting Among the Orders Made by the Court at Exeter [New Hampshire], previous to the Union with Massachusetts in 1643 i.e. , in the period of town government prior to incorporation of the area into the Massachusetts colony was that of Feb. 9, 1640, 1 Laws of New Hampshire (Batchellor ed. 1904) 740, which provided "That if any person or persons shall plot or practise either by combination or otherwise, the betrayinge of the contry or any principal part thereof into the hands of any foreign State, Spanish, Dutch or French, contrary to the allegiance we profess and owe to our dread sovereign lord King Charles his heirs and successors, it being his majesties pleasure to protect us his loyal subjects, shall be punished with death. If any person or persons shall plot or practise treacherye, treason, or rebellion, or shall revile his majesty the Lord's Anointed, contrary to the allegiance we professe and owe to our dread sovereign Lord King Charles his heirs and successors (ut supra) shall be punished with death Numb 16, Exo. 22, 28 I Kings 2, 8, 9, 44."
Chapter XIV of the Concessions and Agreements of the Proprietors, Freeholders and Inhabitants of the Province of West New-Jersey in America, Mar. 3, 1676 (Leaming and Spicer, op. cit. supra note 6, at 393-94) is perhaps the most unusual act on domestic treason to be found in the colonies, creating a special offense on the part of members of the legislature After reciting the obligation of the Assembly not to make laws contrary to fundamental rights defined in c. XIII, c. XIV declared "But if it so happen that any Person or Persons of the said free Assembly, shall therein designedly, willfully, and maliciously, move or excite any to move, any Matter or Thing whatsoever, that contradicts or any ways Subverts, any Fundamentals of the said Laws in the Constitution of the Government of this Province, it being proved by seven honest and reputable Persons, he or they shall be proceeded against as Traitors to the said Government.'
Among the Virginia laws of the session of April, 1684, Act II is reminiscent of English decisions which found a constructive levying of war in concerted plans to burn all brothels, destroy all dissenting chapels, and the like Reciting that evilly disposed persons, about May 1, 1682 and thereafter, tumultuously and mutinously assembled to cut up and destroy all tobacco plants and with force and arms in a traitorous and rebellious manner entered the plantations of many good subjects for this purpose, "to the hazarding and subvertion of the whole government, and ruine and destruction of his majesties good subjects," had not the authorities timely intervened so that some notorious actors had been convicted and executed, the Act declared its purpose to be to state the law "to the end and purpose, that none of his majesties subjects may be at any time hereafter seduced by the specious pretenses of any persons, that such tumultuous and mutinous assemblyes, to cut up or destroy tobacco plants or any other the crop or labours of the inhabitants of the said collony, are but riots and trespasses.
Accordingly, it provided "That if any person or persons whatsoever, to the number of eight or above, being assembled together, shall at any time after the first day of June now next ensuing, intend, goe about, practice or put in use with force, unlawfully to cut, pull up or destroy any tobacco plants, either in beds or hills, growing within the said collony, or to destroy the same, either cureing or cured, either before the same is in hogs-heads or afterwards, or to pull downe, burne or destroy the houses or other places where any such tobacco shall be, or to pull downe the fences or enclosures of any tobacco plants, with intent to cut up or destroy the same, (and such person or persons being commanded or required in his majesties name by the governour or other commander in chief, or any one of the councell, or one or more of the justices of the peace of the said collony, commanding and requireing such persons to disperse themselves, and peaceably to depart to their habitations) shall continue together by the space of four houres after such proclamation made, at or nigh the place where such persons shall be soe assembled, that then every such persons soe willingly assembled, in forceable manner, to doe any of the acts before mentioned and soe continuing together as aforesaid, and being thereof lawfully convicted, shall be deemed, declared and adjudged to be traytors, and shall suffer paines of death, and alsoe loose and forfeite as in cases of high treason."
The 1682 plant-cutting disturbances had arisen out of the effort of certain planters by this method to enforce crop restriction to cure the distress of low tobacco prices, after earlier attempts to restrict plantings by law had failed Relying explicitly upon the English authority on constructive levying of war, Governor Culpeper caused several prosecutions for treason to be brought, as a result of which one person was acquitted and three convicted Of the latter, one was reprieved because of his youth and the other two hanged and their estates seized Thereafter the act of 1684 was passed, in order as it declares to remove the general impression that such disturbances were mere riots There seem to have been no trials for treason under this act See Scott, op. cit. supra note 6, at 159-61.
Cf. the usual provision of militia laws against seditious or mutinous conduct, of which the Massachusetts Act of Mar. 20, 1699-1700, c. 21 (1 Acts and Resolves of the Province, op. cit. supra note 9, at 401) is typical. "That every person that shall be in his majestie's service, being mustered and in pay as an officer or souldier, who shall at any time during the continuance of this act excite, cause or joyn in any mutiny or sedition in the army, fortress or garrison whereto such officer or souldier belongs, or shall desert his majesty's service in the army, fortress or garrison, shall suffer death, or such other punishment as by a court martial shall be inflicted."
21 See note 14 supra Cf. Quincy, Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay between 1761 and 1772 (1865) 176, 221.
23 See legislation cited in notes 3-6 supra, the Maryland Acts of May 25, 1705 and Apr. 15, 1707 (note 17 supra), the Exeter Order of Feb. 9, 1640 (note 20 supra), the New York Act of May 6, 1691 (note 14 supra), the Pennsylvania Act of Nov. 27, 1700 (note 19 supra).
24 See 8 Holdsworth, History of English Law (2d ed. 1937) 313, 314, 318.
25 1 Acts and Resolves of the Province, op. cit. supra note 9, at 595, 3 op. cit. 152.
26 See p. 80 supra.
27 3 Acts and Resolves of the Province, op. cit. supra note 9, at 814, cf. Act of June 14, 1755, c. 6, id. at 865, and Act of Feb. 25, 1757, c. 25, id. at 1027.
28 The earliest act requiring two or more witnesses for capital offenses in general seems to be Laws of New Haven Colony (1656, Hartford ed. , 1858).
*17, "That no man shall be put to death, for any offence, or misdemeanour in any case, without the testimony of two witnesses at least, or that which is Equivalent thereunto, provided, and to prevent, or suppresse much inconvenience, which may grow, either to the publick, or to particular Persons, by a mistake herein, it is Ordered, and declared, by the Authority aforesaid, that two, or three single witnesses, being of competent age, of sound understanding, and of good Reputation, and witnessing to the case in question (whither it concerne the publick peace, and welfare, or any one, and the same particular person) shall be accounted (the party concerned, having no just exception against them) sufficient proofe, though they did not together see, or heare, and so witnesse to the same individuall, any particular Act, in reference to those circumstances of time, and place."
None of the General Laws of Connecticut, however, adopted this provision The General Laws and Liberties of New Plimouth Colony (1671), c. I, "The Generall Fundamentals," Bngham, op. cit. supra note 5, at 242, provided "6 That no Man be Sentenced to Death without Testimonies of two witnesses at least, or that which is equivalent thereunto, and that two or three Witnesses being of competent Age, Understanding and of good Reputation, Testifying to the case in question, shall be accounted and accepted as full Testimony in any case, though they did not together see or hear, and so Witness to the same individual Act, in reference to circumstances of time and place, Provided the Bench and Jury be satisfied with such Testimony."
In New Jersey, the Act of May 30, 1668 (Leaming and Spicer, op. cit. supra note 6, at 84), stated that "Concerning taking away of a Man's Life, It is Enacted that no Man's Life shall be taken away under any Pretence but by Virtue of some Law established in this Province, that it be proved by this Mouth of two or three sufficient Witnesses." A similar declaration regarding all crimes was contained in c. XX of the Concessions and Agreements of the Proprietors, etc , Mar. 3, 1676 Id. at 397.
Statutes providing generally for conviction of treason of persons "provably attainted of open deed upon the testimony of two lawful and credible witnesses upon oath," or expressly providing that trials in treason cases should be regulated according to the Act of 7 William III, are cited in notes 8-11 supra See also Pennsylvania Act of Nov. 27, 1700 (note 19 supra) Chancellor Kilty notes, regarding indictments brought in Maryland in 1706 and 1707 for feloniously and traitorously receiving one Richard Clarke, outlawed on a charge of conspiracy to overthrow the government, that "the record in the first [case] states, that the prisoner (when brought to be tried) had, before that time, had a copy of the indictment, and a copy of a panel of jurors delivered to him, according to the form of the statute. This was the statute 7 W 3, Ch 3, and in the last case the prisoner declared, that he was ready, that he wanted no process for witnesses, &c. , that he released, or rather declared, that he had a copy of the indictment and panel, and forewent any advantage for the trial before due time fixed by the statute 7 king William for regulating trials in high treason, and on misprision of treason That statute having been thus recognized furnishes strong evidence if it were necessary that the one now under consideration [25 Edw III, Stat 5] was in part adopted also, being essential to the safety of the inhabitants, as defining what offenses only should be treason." Kilty, op. cit. supra note 7, at 217-20.
29 See note 14 supra, and Scott, op. cit. supra note 6, at 156-59 See 1 Morison and Commager, The Growth of the American Republic (1942) 80. "Berkeley rounded up the leaders and had thirty-seven of them executed for treason. 'That old fool has hanged more men in that naked country than I have done for the murder of my father,' exclaimed Charles II."
30 See note 15 supra Executive action against persons guilty of what amounted probably to "constructive levying of war" is reflected in c. XXIV of the Laws of the Maryland General Assembly of Apr. 6-29, 1650, Bacon, Laws of Maryland at Large (1765) and in Kilty's account of the prosecutions of 1706 and 1707 (see note 28 supra), in New Jersey, by the Declaration of the Proprietors, Dec. 6, 1672, III (Leaming and Spicer, op. cit. supra note 6, at 36), par XXXVII of the Acts in Assembly of Nov. 5, 1675 (Laws in Carteret's Time, Leaming and Spicer, op. cit. supra at 110-11) par XXI of the Acts and Laws of the Assembly of Nov. 21, 1681 (Laws Passed in West-Jersey, Leaming and Spicer, op. cit. supra at 433) and 1703, Laws, c. III (1 Nevill, op. cit. supra note 17), and in New York, in addition to the Act of May 6, 1691, by the Act of Mar. 9, 1774 (5 Colonial Laws of New York (1664-1775) (1894) 647, 654).
31 Cf. Kent, Ch J., in Jackson v. Catlin, 2 Johns 248, 260 (N.Y. 1807), see note 69 infra.
32 As to the reality of the danger from disaffected persons, see Paltsits, Minutes of the Commissioners for detecting and defeating Conspiracies in the State of New York, 1778-1781 (1909) passim That the reason for the paucity of civil trials for treason was not any lack of a problem, but rather the resort to summary administrative or court martial handling of cases, see ibid. and Van Tyne, The Loyalists in the American Revolution (1929) 271, 272 Further examples will be found in Davis, The Confiscation of John Chandler's Estate (1903) c. III De Mond, The Loyalists in North Carolina During the Revolution (1940) passim, Harrell, Loyalism in Virginia (1926) passim, Sequestration, Confiscation and Sale of Estates, 6, State Papers of Vermont (Nye ed. 1941) passim.
33 5 Journals of the Continental Congress (1906) 475, 6 Force, American Archives, 4th ser (1846) 1720 The composition of the committee which recommended the resolutions is stated in Adams, Life of John Adams, in 1 Works of John Adams (1856) 224-25.
34 See "Instructions for the Deputies appointed to meet in General Congress on the part of this Colony," Aug. , 1774, I The Writings of Thomas Jefferson (Library ed. , 1903) 13, 211, 215, Wilson, Commonplace Book (MS , Pa. Hist. Soc. 1767).
35 The following states substantially adopted the Congress' recommendation Delaware Feb. 22, 1777 (General Assembly session of Oct. 28, 1776, c. LXXXVIII, 359), bound with Laws of the Government of New-Castle, Kent and Sussex, upon Delaware (1763) (see Act of June 26, 1778, 4), the 1777 Act was limited by its terms to the duration of the present war, and was apparently allowed to lapse, leaving in effect the general adoption of the English law, by 1719, Delaware Laws, c. XXII, 64 (see note 11 supra), limited by 1792, Delaware Constitution, Art V, § 4, copied from the provision of the United States Constitution See 2 Laws of the State of Delaware, op. cit. supra note 11, at 595 Massachusetts Feb. 1, 1777, c. 32, 5 Acts and Resolves of the Province, op. at supra note 9, at 615 New Hampshire Jan. 17, 1777, Acts and Laws (1776-80) of the State of New Hampshire in America (1780) 63 New Jersey Oct. 4, 1776, c. V, in Wilson, Acts of Council and Assembly from Establishment of Present Government to Dec. 24, 1783 (1784) 4 New York Resolution of the Convention of Representatives of the State of New York, July 16, 1776, I Force, American Archives, 5th ser (1846) 446-47 North Carolina Ordinance of Dec. 23, 1776 (Ordinances of Convention 1776), 23 State Records, op. cit. supra note 11, at 997, see also 1777, Laws (1st Sess.) c. III, and 1777, Laws (2d Sess.), c. VI, 24 op. cit. 9, 84 Pennsylvania Sept 5, 1776, c. DCCXXXII, 9 Statutes at Large (1903), op. cit. supra note 11, at 18, see Feb. 11, 1777, c. DCCXL, id. at 45 Rhode Island May, 1777, Laws 30 Though not copying the full form of the act recommended by Congress, c. III of the Virginia statutes, Oct. 1776 (9 Hening, op. cit. supra note 11, at 168), should be counted among the acts stemming from the Congressional advice, since we know that Thomas Jefferson at least participated in the writing of the act after he had left the Continental Congress to take his seat in the Virginia House of Delegates The index of the Clerk of the House of Delegates, for the Journal for 1776 notes, under date of Oct. 28, 1776, 'TREASON / Leave for bill Declaring what shall be treason, with resolutions of General Congress / Referred to a committee (messrs Bullitt, Griffin, Lee, Curie, Henry, and Jefferson) to prepare ' (Reference through the courtesy of Mr William J. Van Schreeven, Head Archivist, Virginia State Library, Richmond). See 1 Randall, Life of Thomas Jefferson (1858) 203, 205, Kean, Thomas Jefferson As A Legislator (1887) 11 Va L. J. 705, 714.
Statutes differing in greater degree from the recommendation of the Continental Congress, whether or not antedating that suggestion, are the Connecticut Act of Oct., 1776 in Acts and Laws (1784) 251, cf. 1781, Acts and Laws, id. at 569 Maryland Apr. 20, 1777, c. XX, in 1 The Laws of Maryland (1799, 1800) South Carolina Apr. 11,1776, No. 1017, 4 Statutes at Large, op. cit. supra note 20 at 343. Cf. Vermont, 1779, Acts and Laws, 6 Georgia does not appear to have enacted any general treason act, though numerous separate acts of attainder were passed See 19 Colonial Records of the State of Georgia (1911) Part II, 673, cf. Marbury and Crawford, Digest of the Laws of the State of Georgia (1755-1800) (1802) 62-111.
Force, American Archives (1846), gives data regarding several of the state acts 4th ser , v. V, 1604 (Connecticut), v. VI, 1500 (Maryland), v. VI, 1648 and 5th ser., v. I, 412 (New Jersey), 5th ser., v. I, 446 (New York), 549 (Rhode Island), 1210 (Pennsylvania).
Lists of test oath laws and of the "principal" laws directed against the Loyalists in the American Revolution are contained in Van Tyne, The Loyalists in the American Revolution (1929) app B and C, 318, 327 36 Compare, e.g., New York Act of Sept 21, 1744, 3 Colonial Laws, op. cit. supra note 6, at 424, and Rhode Island, 1756, 1766, Acts, in Acts and Laws (1767), op. cit. supra note 11, at 6, with Massachusetts, May 1, 1776, c. 21, 5 Acts and Resolves of the Province, op. cit. supra note 9, at 479, New York Act of Mar. 30, 1781, c. XLVIII, in Laws of the State of New York (1782) 189, Rhode Island, July, 1776, Laws, 133.
37 See notes of arguments in Respublica v. Malm, 1 Dall. 33 (Pa. Ct. of Oyer & Terminer, 1778), Respublica v. Carlisle, id. at 35, 36, Respublica v. Roberts, id. at 39 In the "Notes of C. J. McKean in case of Ab'm Carlisle, 1778," 7 Pennsylvania Archives (Hazard ed. 1853) 44-52, Wilson cites Blackstone, Hale, and Hawkins, and the statutes of 25 Edw III, 1 Edw VI, 1 & 2 Ph. & M., c. 10, 7 Wm. III, c. 3, and 7 Anne, c. 21 Hazard states (op cit. supra at 52, n. ), that Mr Chief Justice McKean's notes on the arguments in the Roberts case could not be found.
38 Aug., 1774.
39 1 Writings, op. cit. supra note 34, at 211, 215 As Secretary of State, in his letter of Apr. 24, 1792, to Messrs Carmichael and Short, giving instructions regarding negotiations with Spain, Jefferson explained why this country would not wish to agree to surrender political refugees. "Treason, ... when real, merits the highest punishment But most codes extend their definitions of treason to acts not really against one's country They do not distinguish between acts against the government, and acts against the oppressions of the government, the latter are virtues, yet they have furnished more victims to the executioner than the former, real treasons are rare, oppressions frequent The unsuccessful strugglers against tyranny, have been the chief martyrs of treason laws in all countries." 8 op. cit. 332, cf. the Notes on Virginia (1782), 2 op. cit. 216. With his disappointment at the failure to convict Burr fresh in mind, President Jefferson emphasized the need for reexamming the adequacy of the extent of the offense rather than its limitations, in his Seventh Annual Message (1807), 3 op. cit. 451-52.
40 1 Journals of the Continental Congress (1920) 63, 65 See the more elaborate statement of this complaint in the "propositions offered by J. Duane, to the Committee for stating Rights, Grievances and the Means of Redress In Congress at Philadelphia, between 7th and 22d September, 1774," 1 Burnett, Letters of Members of the Continental Congress (1921) 43, 44, n. 36.
41 This was a highly practical point in the fears and resentments of colonial leaders See letter of Joseph Hewes to James Iredell, Philadelphia, Oct. 31, 1774, 1 Burnett, op. cit. supra note 40, at 83, I Van Tyne, The Founding of the American Republic (1922) 301-305.
42 See pp. 76-77 supra.
43 Substantially the argument outlined is offered in 2 Swift, A System of the Laws of the State of Connecticut (1796) 297-98, Rawle, A View of the Constitution of the United States (2d ed. 1829) 141.
44 1 Writings, op. cit. supra note 34, at 216, 218, 220-221 Jefferson's proposed revision of the criminal code failed of enactment by one vote in 1785, legislation of similar type was finally obtained in 1796 I op. cit. 257 See Kean, op. cit. supra note 35, at 714.
45 1 Writings, op. cit. supra note 34, at 216 In the "Note" which Jefferson later wrote on his achievements in the legislature, he commented, regarding his proposed revision of the criminal code, that "The text had been studiously drawn in the technical terms of the law, so as to give no occasion for new questions by new expressions." I op. cit. 257.
46 According to the notes of his argument in Respublica v. Carlisle, taken by Mr Chief Justice McKean, Wilson contended "Treason at common law indefinite & not ascertained, I Hawk fo., 34, 4 Blackstone pa 75, 1 Hale fo., 81 By 25th Edwd., 3, ch. 2, it is ascertained and fixed, the Parliament who enacted this act are called the Benedictum Parliamentum, the only rule ever since in England, except that by the 7th William, the prosecution must be within 3 years...." And the Chief Justice notes the following brisk exchange between prosecution and defense.
"Mr Sergeant, Attorney General, What was treason at common law, the arbitrary proceedings in arbitrary reigns are nothing to the present question.'
4 Blackstone 352 & 3, Laws of Pennsylvania very different & more beneficial.
Replication by Mr Wilson, If the Statutes are not extended here, we shall be all afloat as if we were before the 25th Edwd 3, ch. 3,'" See note 37 supra See also Konkle, James Wilson and The Constitution (1907) 19, Loyd, The Early Courts of Pennsylvania (1910) 126, Nevins, The American States During and After the Revolution 1775-1789 (1924) 256, Alexander, James Wilson, Nation-Builder (1907) 19 Green Bag I, 98, 107 Alexander suggests that the harsh suppression and penalizing of the Jacobite rebellion of 1745-1746, in the Scotland of Wilson's youth, was probably a significant element in shaping his political attitudes." Id at 4.
47 1 Dall. 33 (Pa Ct. of Oyer & Terminer, 1778) The court's ruling on the first point seems clearly unsound, and is contrary to the great weight of authority in the American treason cases.
48 1 Dall. at 39.
49 Treasons must be tried in the county where committed Georgia, Const. , 1777, XXXIX The governor may reprieve, but only the legislature may pardon, in cases of treason Georgia, Const., 1789, II, 7, Pennsylvania, Const. , 1776, § 20 of the Plan of Frame of Government. No person shall be attainted of treason or felony by the legislature, there shall be no corruption of blood or forfeiture of estates, save those of the offender Maryland, Const., 1776, XVI, XXIV, Massachusetts, Const., 1780, Part I, XXV, New York, Const. , 1777, XLI, Pennsylvania, Const, 1790, IX, 18, 19, Vermont, Const, 1786, c. II, par XVII See Thorpe, op. cit. supra note 2.
50 Apr. 20, 1777, c. XX, 1 The Laws of Maryland (1799, 1800).
51 Laws of the State of New York (1782), c. XXV, 85 The penalty was forfeiture of property The additional acts specified as "adhering to the Enemies of the STATE" were voluntarily withdrawing to British-controlled areas, or breaking paroles and going to or remaining in British-controlled areas.
52 The Pennsylvania Act of Dec. 3, 1782, c. M, 11 Statutes at Large (1906), op. cit. supra note 11, at 14, recited facts indicating social and economic tension between the settled and propertied eastern portion of the state and the frontier areas, pointing out that despite straitened finances the commonwealth had spent much in defense of the frontier, and that large debts were owed the late proprietaries, to which each county should contribute its share, "and the unlocated lands within this state are, and always have been considered a valuable fund towards paying and discharging the said debt." It then declared it high treason, to be punished by death and forfeiture of all property, if anyone "shall erect or form, or shall endeavor to erect or form any new and independent government within the boundaries of this commonwealth...." Id at 15 U.S. Const. Art IV, § 3 (no new state may be created within the territory of an existing state without the consent of the latter) might now be deemed to confirm the authority of a state to regard such an endeavor as treason. Cf. the Pennsylvania Act of Mar. 10, 1787, c. MCCLXX, 12 Statutes at Large, op. cit. supra note 11, at 378 (co-operation with Massachusetts by offering reward for apprehension of Daniel Shays) There appears to be no reported decision under the statute of 1782 See (1893) 15 Crim. Law Mag. 191, 192, cf. an exchange of comment, apparently involving this act, in the debate over the Sedition Act of 1798, between Representatives Otis (Mass.) and Gallatin (Pa.) 8 Annals of Cong. 2148, 2149 (1851).
In South Carolina, see Apr. 11, 1776, No. 1017, 4 Statutes at Large, op. cit. supra note 20, at 343 1779, Vermont Acts and Laws 6, interestingly, recognizes the possible difference between disaffection to the organized community and to the particular government at any given time ("... shall levy War against the State, or Government thereof....") 1779, Vermont Acts and Laws 73, enacted the old "Invasion, Insurrection, or public Rebellion" clause which had not been seen since the mid-17th century Cf. notes 3-6 supra.
53 Conspiracy to levy war is included in the basic treason statutes of Massachusetts, New Hampshire, Rhode Island and Vermont (See note 35 supra). It is stated as one basis for the confiscation of property in the Massachusetts Act of May 1, 1779, c. 49, 5 Acts and Resolves of the Province, op. cit. supra note 9, at 968, and in Oct., 1779, Rhode Island Laws 24 To be "in any way concerned in forming any Combination, Plot, or Conspiracy, for betraying this State, or the United States of America, into the Hands or Power of any foreign Enemy" is declared treason, as a separate offense, in North Carolina, 1777, Laws, (1st Sess. , c. III), 24 State Records, op. cit. supra note 11, at 9, Pennsylvania, Act of Feb. 11, 1777, c. DCCXL, 9 Statutes at Large, op. cit. supra note 11, at 45, South Carolina, Apr. 11,1776, No. 1017,4 Statutes at Large, op. cit. supra note 20, at 343, Vermont, 1779, Acts and Laws 6 Conspiracy to deliver to the enemy in war time any vessel belonging to the United States, the state or a subject thereof, was declared a felony to be punished by death in Maryland, Dec. 3, 1777, c. I, 1 The Laws of Maryland (1799. 1800), and the Pennsylvania Act of Sept 22, 1780, c. CMXV, 10 Statutes at Large, op. cit. supra at 220, is substantially similar But cf. Connecticut, Acts and Laws (1784) 66.
54 See, in note 35 supra, the acts of Connecticut, Maryland, North Carolina, Pennsylvania (1777), South Carolina and Vermont, cf. Massachusetts, May 1, 1776, c. 21, 5 Acts and Resolves of the Province, op. cit. supra note 9, at 479.
55 See Connecticut (1784) and Pennsylvania (1777) acts, note 35 supra, and Rhode Island, Oct., 1775, Acts 160.
56 See New Jersey and North Carolina (1776) acts, note 35 supra, and Virginia, Ordinances of the Convention, Dec. , 1775, c. VII, 9 Hening, op. cit. supra note 11, at 101.
57 1 The Laws of Maryland, op. cit. supra note 35, c. XX Note that this act singles out as conduct especially dangerous the mere fact of correspondence with one in the service of the enemy July, 1780, Rhode Island Laws, (1st Sess. ) 15, provided that anyone bringing a letter from or carrying it to a place in possession of the enemy, without previous inspection thereof by the authorities "shall be proceeded against as an Offender."
58 1 The Laws of Maryland, op. cit. supra note 35, c. XX.
59 Nov. 8, 1782, c. 32, Acts and Laws of the Commonwealth of Massachusetts (1782-1783) 89.
60 Aug. , 1775, Acts, 88, Oct. , 1775, 160 See also Massachusetts, May 1, 1776, c. 21, 5 Acts and Resolves of the Province, op. cit. supra note 9, at 479.
61 Acts of Council and Assembly, op. cit. supra note 35, app. no. V. A fine up to £1000 or imprisonment up to 12 months for the first offense, and death for the second, were provided for anyone who, having a pass to enter enemy territory, took with him more provisions than necessary for his sustenance, and a fine of £500, with the death penalty for a second offense, was set for anyone "who shall send or convey, or be in any Manner aiding or assisting in sending or conveying Provisions or other Necessaries of any Kind into the Lines or Encampments, or into any Place in the Possession of the Subjects or Troops of the King of Great-Britain, without being duly authorized as aforesaid." This act was supplemented and amended by Acts of Dec. 11, 1778, c. CXXIII, id. at 75, Dec. 25, 1779, c. CLXXXIV, id. at 117, Dec. 22, 1780. c. CCXXXIV, id. at 155, June 28, 1781, c. CCLXXIII, id. at 214, Oct. 6, 1781. c. CCLXXXIII, id. at 219, June 24, 1782, c. CCCXVII, id. at 287 The death penalty was removed and pillorying, imprisonment, compulsory naval service or banishment substituted by the Act of Dec. 22, 1780, supra The codifying act, of June 24, 1782, supra, also removed the death penalty for second offenders, but substituted forfeiture of all property.
62 c. CCCXVII, Acts of Council and Assembly, op. cit. supra note 35.
63 Acts of Council and Assembly, op. cit. supra note 35.
64 Numerous examples of these various phrasmgs will be found in the statutes cited in note 35 supra.
65 The restrictive argument is drawn from the phrasing of the Pennsylvania act in the brief of the defendant on reargument in United States v. Cramer (U.S. Sup Ct. , October Term, 1944), in the thesis that the specifications of treasonable acts indicated an intention to limit the crime to accomplished aid and comfort, barring as "treason" anything which might be deemed merely an attempt The statute's terms offer some support to this argument Cf. Respublica v. Roberts, 1 Dall. 39 (Pa. Ct. of Oyer and Terminer, 1778) But, as is suggested in the text, the support is not great when the act is viewed in relation to the general legislative history of the time Indeed, the preamble of the Pennsylvania statute itself bears witness to the prevailing temper, when it justifies the act by a broad assertion of the need for preventing danger to the state. "Whereas it is absolutely necessary for the safety of every state to prevent as much as possible all treasonable and dangerous practices that may be carried on by the internal enemies thereof and to provide punishments in some degree adequate thereto, in order to deter all persons from the perpetration of such horned and dangerous crimes.
Similar acts are Connecticut Acts and Laws (1784) 251, 1777, Acts of Assembly of North Carolina (1st Sess. ) c. III, 11 and (2d Sess. ) c. VI, 41, and 1779. Vermont Acts and Laws 6 The familiar, general clause on adherence to enemies is contained in Feb. 21, 1781, Connecticut Acts and Laws 569, and in the basic treason statutes of Delaware, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Virginia, while a substantially similar clause forms a part of the fundamental treason act of South Carolina See note 35 supra In practically every one of these states there are additional provisions, spelling out what amount to acts of aid and comfort, but these are not so framed as to suggest any limitation on the general provision The Ordinance of Dec. 23, 1776 in North Carolina, and the act of Sept 5, 1776, in Pennsylvania, contained the general adherence clause, but these acts would probably be deemed repealed by implication by the subsequent statutes See note 35 supra The Massachusetts act of May 1, 1776, c. 22, is somewhat similar to the Pennsylvania act of Feb. 11, 1777, but is complemented, if not repealed, by the act of Feb. 1, 1777, c. 32, following the model suggested by the Continental Congress.
One might argue that the fact that in some of these cases the legislatures provided penalties much less severe than the sentence of death and forfeiture of estate familiar in high treason, suggests that the legislators were in practice indicating a policy restricting the offense of "high treason" by creating lesser felonies and even misdemeanors for conduct which might have been subjected to the harsher punishments However, many of these acts explicitly treat the offenses as "treason" or betrayal, and there seems no authority that the severity of punishment is the criterion of what is "treason," the essence of which seems to consist in a betrayal of allegiance The provision of the United States Constitution, conferring on Congress the authority to fix the penalty for treason, within the limitations there set, implies that it is not the severity of penalty which defines the offense.
A narrower argument restrictive of the scope of the crime might be drawn from the Massachusetts Act of Feb. 1,1777, c. 32, 5 Acts and Resolves of the Province, op. cit. supra note 9, at 615, and May, 1777, Rhode Island, Acts, (2d Sess. ) 30, which provide "That Concealment or keeping secret, of any Treason, be deemed and taken only Misprision of treason...." [Emphasis supplied ] The result of this negative language is apparently that what otherwise might well be treated as a form of treason by giving aid or comfort to the enemy must be prosecuted as the lesser offense However, in all the other states, the crime of misprision is created without the use of such restrictive words, so that discretion is apparently left to the prosecutor as to the severity of the penalty which he might seek in a case of concealment.
66 Acts of Council and Assembly, op. cit. supra note 35.
67 1781 (4th Sess. ) c. XLVIII, Laws of the State of New-York 189 Equally severe are Connecticut Acts and Laws, (1781) 569, and Apr. 6, 1781, 4 Laws of New Hampshire (Batchellor ed. 1904) 384.
68 Oct., 1776, Laws, c. V, 9 Hening, op. cit. supra note 11, at 170 The bulk of this type of legislation imposed penalties of fine, imprisonment, or civil disabilities Connecticut Acts and Laws (1781) 569 (alternative penalty) New Hampshire Act of Apr. 6, 1781 (note 67 supra) (alternative penalty) Rhode Island July, 1776, Acts 133 Virginia May, 1780, Laws, c. XVI, 10 Hening, op. cit. supra at 268 See also the acts of Delaware (1777), Maryland (1777), New Jersey (1776), and North Carolina (1776), cited in note 35 supra. Cf. the usual test oath acts, imposing penalties for refusal to swear, ranging from banishment to civil disabilities e.g., Delaware, Act of May 18, 1778, Maryland, Dec. 3, 1777, 1 The Laws of Maryland (1799, 1800), c. XX, New Jersey, June 5, 1777, Acts of Council and Assembly, op. cit. supra note 35, c. XXXIII, Virginia, May, 1777, Laws, c. III, 9 Hening, op. cit. supra at 281.
69 See Inglis v. Trustees of the Sailor's Snug Harbor, 3 Pet 99, 121, 168 (U.S. 1830), Dana, C. J., in Martin v. Commonwealth, 1 Mass 347. 397 (1805), Sedgwick, J., id. at 384, Kent, Ch. J., in Jackson v. Cathn, 2 Johns 248, 260 (N.Y. 1807), Wells v. Martin, 2 Bay 20 (S.C. 1796), Mongin v. Baker and Stevens, 1 Bay 73 (S.C. 1789), cf. Collins v. Kincaid, 2 Bay 536 (S. C 1804) But cf. Cooper v. Telfair, 4 Dall. 14, 18, 19 (U.S. 1800), Richardson, C. J., in Thompson v. Carr. 5 N. H. 510, 515 (1831), argument of counsel in M'Neil v. Bright, 4 Mass 282, 297 (1808), Camp v. Lockwood, 1 Dall. 393 (Pa. Ct. Com. Pleas of Phil. Co., 1788).
70 1779, Acts 24.
71 Acts of Council and Assembly, op. cit. supra note 35, c. CXXII, 67 See Kempe's Lessee v. Kennedy, 14 Fed. Cas. 281, No. 7686 (C. C. D. J. 1808), 5 Cranch 173 (U.S. 1809) The New Jersey act is not the less significant, because it limits its penalties to those who had not merely withdrawn, but had also aided the "enemy," since such aid would not be "treason" unless given by one whom the state regarded as owing it allegiance.
72 Massachusetts Apr. 30, 1779, c. 48, 5 Acts and Resolves of the Province, op. cit. supra note 9, at 966 New Jersey Act of Dec. 11, 1778 (see note 71 supra) New York Oct. 22, 1779, Laws of the State of New-York 85 Pennsylvania Mar. 6, 1778, c. DCCLXXXIV, 9 Statutes at Large, op. cit. supra note 11, at 201 South Carolina Feb. 26, 1782, No. 1155, 4 Statutes at Large, op. cit. supra note 20 at 523.
73 Massachusetts Oct. 16, 1778, c. 24, 5 Acts and Resolves of the Province, op. cit. supra note 9, at 912, cf. May 10, 1777, c. 48, op. cit. 648 New Hampshire Nov. 19, 1778, Acts and Laws, op. cit. supra note 35, at 128 New Jersey Dec. 11, 1778, Acts of Council and Assembly, op. cit. supra note 35, c. CXXII 67, Oct. 3 1782, c. CCCXVIII, op. cit., see Kempe's Lessee v. Kennedy, 14 Fed. Cas. 281, No. 7686 (C.C.D.N.J. 1808), 5 Cranch 173 (U.S. 1809) North Carolina 1777, Laws (2d Sess. ) c. XVII, 24 State Records, op. cit. supra note 11, at 123 South Carolina Mar. 17, 1783, No. 1189, 4 Statutes at Large, op. cit. supra note 20, at 568 Quaere, regarding Rhode Island, Oct. , 1779, Acts 24. See note 70 supra Cf. New York Act of May 12, 1784, c. LXVI, op. cit. supra note 36, and Laws of the State of New York (1778-1789) (1789) (misprision) New York Council of Revision objected to this last act in an opinion of the same date "Because by the first enacting clause, the voluntarily remaining with the fleets and armies of the King of Great Britain is made an offence highly penal, whereas by the known laws of all nations, persons who remain with their possessions when the country is over-run by a conquering army, are at least excused, if not justified, and should our laws be made to retrospect in a manner so directly contrary to the received opinions of all civilized nations, and even the known principles of common justice, it will be highly derogatory to the honor of the state, and fill the minds of our fellow citizens with the apprehension of suffering in future some heavy punishment for that conduct which at present is perfectly innocent." See Street, The Council of Revision of the State of New York (1859) 254. Law of the Legislature of the State of New York in Force Against the Loyalists etc (1786) app. no. 2, 171 The law was enacted, however, notwithstanding the Council's objection Cf. Street, op. cit. supra at 219, 246.
74 Maryland Apr. 20, 1777, c. XX, in 1 The Laws of Maryland (1799, 1800), Feb. 2, 1781, ibid., Massachusetts May 1, 1779, c. 49, 5 Acts and Resolves of the Province, op. cit. supra note 9, at 968 New Hampshire Mar. 25, 1782, 4 Laws of New Hampshire, op. at supra note 6, at 456 New York Oct. 22, 1779, c. XXV, Laws of the State of New York, 85, cf. July 1, 1780, c. LXXVI, id. at 143, and acts cited in note 76 infra North Carolina Act of 1777 (note 73 supra) Rhode Island Oct. , 1779, Acts 24 South Carolina Feb. 26, 1782, No. 1155 (note 72 supra).
75 See opinions cited in note 69 supra.
76 Oct. 9, 1780, c. XIV, and Mar. 15, 1781, c. XXVIII, Laws of the State of New York, op. cit. supra note 36, at 160, 176.
77 Massachusetts Oct. 16, 1778, c. 24, 5 Acts and Resolves of the Province, op. cit. supra note 9, at 912 New Hampshire Nov. 19, 1778, Acts and Laws, op. cit. supra note 35, at 128 North Carolina 1777, Laws (1st Sess. ) c. III and (2d Sess. ) c. VI, 24 State Records, op. cit. supra note 11, at 9, 84 Rhode Island July, 1780, Acts (1st Sess. ) 19 South Carolina Feb. 13, 1777, No. 1051, 1 Statutes at Large, op. cit. supra note 20, at 135, 4 op. cit. 424, Oct. 9, 1778, No. 1101, id. at 450 Vermont 1779, Acts and Laws 71.
78 See statutes cited in note 35 supra.
79 The 1776 acts in Connecticut, North Carolina, Pennsylvania and South Carolina, note 35 supra, lacked two-witness clauses That this was due to inadvertence rather than a judgment of policy is suggested by the appearance of such clauses in the more carefully fashioned acts of 1777 in North Carolina and Pennsylvania Two witness provisions were included in some of the legislation setting forth novel or supplementary definitions of treasonable offenses See, e.g., the disloyal utterances provisions of Delaware Act of Feb. 22, 1777, North Carolina, 1777, Laws, c. III and Pennsylvania Act of Feb. 11, 1777, c. DCCXL, note 35 supra Cf. Maryland Act of Dec. 3, 1777, 1 The Laws of Maryland (1799, 1800) c. XX, par XXXIX (misprision).