Hurst's Law of Treason
Introduction by Jon Roland
Published in University of West Los Angeles Law
Review, Vol. 34, 2002.
The Law of Treason in the United States, by James Willard
Hurst, stands as a classic legal treatise on
this constitutional topic. Now that the prospect of treason trials has emerged,
it is time to make it available to a larger audience, and we have done so.
Traditionally, treason was betrayal of the state, which, in most
countries meant the monarch. A person who commits treason is a traitor.
However, the Framers of the U.S. Constitution chose to adopt a restricted
definition of treason, making it the only term defined in the body of the
Art. III Sec. 3: Treason against the United States, shall consist only
in levying War against them, or in adhering to their Enemies, giving them Aid
and Comfort. No person shall be convicted of Treason unless on the Testimony of
two witnesses to the same overt Act, or on confession in open Court.
The Congress shall have Power to declare the Punishment of Treason,
but no Attainder of Treason shall work Corruption of Blood, or Forfeiture
except during the Life of the Person attainted.
Their reason for doing this was the common English practice of charging
political opponents with a capital offense, often on weak evidence, under the
doctrine of "constructive treason". James Wilson was the principal author of the provision. A classic
case was the trial of Algernon Sidney, beheaded in 1683 for plotting against
the king, based largely on passages from his treatise, Discourses Concerning
Government, published posthumously in 1698.
"Treason" is itself a term which was familiar to the common law before
it was used in the Statute of 25 Edward III (1350), from which the Constitution
derives its language concerning the levying of war, and adhering to enemies,
giving them aid and comfort. However, the treason clause contains no provision
analogous to that by which the Statute of Edward III penalized the compassing
of the king's death, since in a republic there is no monarch and the people are
sovereign. Charges of compassing the king's death had been the principal
instrument by which "treason" had been employed in England for the most
drastic, "lawful" suppression of political opposition or the expression of
ideas or beliefs distasteful to those in power.
The Statute of 7 William III (1694) introduced the requirement of two
witnesses to the same or different overt acts of the same treason or misprision
of treason, made several exceptions to what could be considered treason, and
protected the right of the accused to have copies of the indictment and
proceedings against him, to have counsel, and to compel witnesses, privileges
not previously enjoyed by those accused of common law crimes. This statute
served as a model for colonial treason statutes.
The first major cases under the U.S. Constitution arose from a 1807
conspiracy led by Aaron Burr, who had served as
vice president under Thomas Jefferson 1801-05, to seize parts of Mexico or the
newly acquired Louisiana Territory. Burr and two confederates, Bollman and
Swartwout, were charged with treason.
Chief Justice John Marshall opened the door for making other than
treason a crime in Ex parte Bollmann
when he held that the clause does not prevent Congress from specifying other
crimes of a subversive nature and prescribing punishment, so long as Congress
is not merely attempting to evade the restrictions of the treason clause,
although he cited no authority for doing so other than the doctrine of
necessity. However he also stated "However flagitious may be the crime of
conspiring to subvert by force the government of our country, such conspiracy
is not treason. To conspire to levy war, and actually to levy war, are distinct
offences. The first must be brought into open action by the assemblage of men
for a purpose treasonable in itself, or the fact of levying war cannot have
been committed. So far has this principle been carried, that ... it has been
determined that the actual enlistment of men to serve against the government
does not amount to levying of war." On the basis of these considerations and
due to the fact that no part of the crime charged had been committed in the
District of Columbia, the Court held that Bollman and Swartwout could not be
tried in the District and ordered their discharge. He continued by saying that
"the crime of treason should not be extended by construction to doubtful
Burr was acquitted September 1, 1807, after an opinion rendered by Chief
Justice John Marshall in U.S. v. Burr that further defined the
requirements for proving treason under the constitutional restriction. The
Court held that Burr, who had not been present at the assemblage on
Blennerhassett's Island, could be convicted of advising or procuring a levying
of war only upon the testimony of two witnesses to his having procured the
assemblage, but the operation was covert, and such testimony was unobtainable.
Marshall's opinion made it extremely difficult to convict one of levying war
against the United States by other than personal participation in actual
The Burr and Bollman cases prompted the introduction in
1808 of a Senate bill to further define the
crime of treason. The debate on that bill, which was rejected, provides insight
into original understanding of the treason clause, that it was to guarantee
nonviolent political controversy against suppression under the charge of
treason or any other criminal charge based on its supposed subversive
character, and that there was no constitutional authority to evade the
restriction by creating new crimes under other names. Although this intent has
since been established by First Amendment jurisprudence, the treason clause
stands as a Tenth Amendment protection of the same right, restricting all
organs of government, not just the legislative branch.
Prior to 1947, most of the precedents of cases that were successfully
prosecuted were state trials for treason, most notably the trials of Thomas
Wilson Dorr (1844) and of John Brown (1859) on
charges of treason by levying war against the States of Rhode Island and
Following the 1861-65 War of Secession some wanted to try southern
secessionists for treason, and former Confederate President Jefferson Davis was
charged with treason in U.S. v. Jefferson Davis, but the constitutional
requirement in Art. III Sec. 2 Cl. 3 that an offender be tried in the state and
district where the offense was committed would have meant trying him in
Virginia, where a conviction was unlikely, so the case was dismissed. Although
the United States Government regarded the activities of the Confederate States
as a levying of war, the President by the Amnesty Proclamation of December 25,
1868, pardoned all those who had participated on the southern side.
Since the Bollman case, the few treason cases which have reached
the Supreme Court were outgrowths of World War II and charged adherence to
enemies of the United States and the giving of aid and comfort. In the first of
these, Cramer v. United States, the
issue was whether the "overt act" had to be "openly manifest treason" or
whether it was enough if, when supported by the proper evidence, it showed the
required treasonable intention. The Court in a five to four opinion by Justice
Jackson took the former view, holding that "the two witness principle" barred
"imputation of incriminating acts to the accused by circumstantial evidence or
by the testimony of a single witness,"even though the single witness in
question was the accused himself. "Every act, movement, deed, and word of the
defendant charged to constitute treason must be supported by the testimony of
The Supreme Court sustained a conviction of treason, for the first time
in its history, in 1947 in Haupt v. United States. Here it was held that although the overt acts relied
upon to support the charge of treason — defendant's harboring and
sheltering in his home his son who was an enemy spy and saboteur, assisting him
in purchasing an automobile, and in obtaining employment in a defense plant
— were all acts which a father would naturally perform for a son, this
fact did not necessarily relieve them of the treasonable purpose of giving aid
and comfort to the enemy.
In Kawakita v. United States,
petitioner originally was a native-born citizen of the United States and also a
national of Japan by reason of Japanese parentage and law. While a minor, he
took the oath of allegiance to the United States; went to Japan for a visit on
an American passport; and was prevented by the outbreak of war from returning
to this country. During the war, he reached his majority in Japan; changed his
registration from American to Japanese, showed sympathy with Japan and
hostility to the United States; served as a civilian employee of a private
corporation producing war materials for Japan; and brutally abused American
prisoners of war who were forced to work there. After Japan's surrender, he
registered as an American citizen; swore that he was an American citizen and
had not done various acts amounting to expatriation; and returned to this
country on an American passport. The question whether, on this record, Kawakita
had intended to renounce American citizenship, said the Court, in sustaining
conviction, was peculiarly one for the jury and their verdict that he had not
so intended was based on sufficient evidence. An American citizen, it
continued, owes allegiance to the United States wherever he may reside, and
dual nationality does not alter the situation. This case is notable for
extending U.S. criminal jurisdiction to the actions of U.S. civilian citizens
abroad, which would have originally been considered unconstitutional.
World War II was followed by the Cold War, which resulted in political
prosecutions of several persons for treason and other charges on dubious
evidence. The trials of the Axis broadcasters - Douglas Chandler, Robert
H.Best, "Axis Sally", Iva Ikuko Toguri d'Aquino as "Tokyo Rose", and indictment
and mental commitment of Ezra Pound - for actions which provided no significant
aid or comfort to an enemy, and were not committed within the territorial
jurisdiction of the United States, muddied the jurisprudence of the treason
In U.S. v. Rosenberg, the court
held that in a prosecution under the Espionage Act for giving aid to a country,
not an enemy, an offense distinct from treason, neither the two witness rule
nor the requirement as to the overt act was held to be applicable. However, no
constitutional authority for the Act itself was proven.
1. Founder and President of the Constitution Society,
2. J. Willard Hurst, The Law of Treason in the United
States — Selected Essays (Westport, Conn.: 1971). Online at
Art. III Sec.
5 J. Elliot, Debates in
the Several State Conventions on Adoption of the Constitution
(Philadelphia: 1836), 469 (James Wilson). (Madison's Notes on the Debates in
the Federal Convention)
5. United States v. Burr, 4 Cr. (8 U.S.) 469
6. Ex parte Bollman, 4 Cr. (8 U.S.) 75 (1807).
Congress, Tenth Congress, First Session, Senate, Debate on Treason and
other crimes, 1808, Feb 11, 24, Mar 1; Annals 17:108-27, 135-49, 159-50
8. Wharton's State Trials of the United States
(Philadelphia, 1849), and Lawson's American State Trials (17 volumes, St.
Louis, 1914-1926), trials of Thomas Wilson Dorr (1844) and of John Brown
9. Cramer v. United States, 325 U.S. 1 (1945).
10. Haupt v. United States, 330 U.S. 631 (1947).
11. Kawakita v. United States, 343 U.S. 717 (1952).
12. United States v. Rosenberg, 195 F.2d 583 (2d.
Cir.), cert den., 344 U.S. 889 (1952).
Bradley Chapin, The American Law of Treason: Revolutionary and Early
National Origins (University of Washington Press. Seattle: 1964).
Stanley I. Kutler, The American Inquisition: Justice and Injustice in
the Cold War (Hill & Wang, New York: 1982.