CH. XXXIX.] DEFINITION OF TREASON. 667
DEFINITION AND EVIDENCE OF TREASON.
§ 1790. THE third section of the third article is as follows: "Treason
against the United States shall consist only in levying war against them,
or in adhering to their enemies, giving them aid and comfort. No person
shall be convicted of treason, unless on the testimony of two witnesses to
the same overt act, or on confession in open court."
§ 1791. Treason is generally deemed the highest crime, which can be
committed in civil society, since its aim is an overthrow of the
government, and a public resistance by force of its powers. Its tendency
is to create universal danger and alarm; and on this account it is
peculiarly odious, and often visited with the deepest public resentment.
Even a charge of this nature, made against an individual, is deemed so
opprobrious, that, whether just or unjust, it subjects him to suspicion and
hatred; and, in times of high political excitement, acts of a very
subordinate nature are often, by popular prejudices, as well as by royal
resentment, magnified into this ruinous importance.1 It is, therefore, of
very great importance, that its true nature and limits should be exactly
ascertained; and Montesquieu was so sensible of it, that he has not
scrupled to declare, that if the crime of treason be indeterminate, that
alone is sufficient to make any government degenerate into arbitrary
1 3 Wilson's Law Lect. ch. 5, p. 95, &c.
668 CONSTITUTION OF THE U. STATES. [BOOK III.
power.1 The history of England itself is full of melancholy instruction on
this subject. By the ancient common law it was left very much to
discretion to determine, what acts were, and were not, treason; and the
judges of those times, holding office at the pleasure of the crown, became
but too often instruments in its hands of foul injustice. At the instance
of tyrannical princes they had abundant opportunities to create
constructive treasons; that is, by forced and arbitrary constructions, to
raise offences into the guilt and punishment of treason, which were not
suspected to be such.2 The grievance of these constructive treasons was so
enormous, and so often
weighed down the innocent, and the patriotic, that it was found necessary,
as early as the reign of Edward the Third,3 for parliament to interfere,
and arrest it, by declaring and defining all the different branches of
treason. This statute has ever since remained the pole star of English
jurisprudence upon this subject. And although, upon temporary emergencies,
and in arbitrary reigns, since that period, other treasons have been
created, the sober sense of the nation has generally abrogated them, or
reduced their power within narrow limits.4
§ 1792. Nor have republics been exempt from violence and
tyranny of a
similar character. The Federalist has justly remarked, that newfangled and
artificial treasons have been the great engines, by
1 Montesq. Spirit of Laws, B. 12, ch. 7; 4 Black. Comm. 75.
2 4 Black. Comm. 75; 3 Wilson's Law Lect. 96; 1 Tucker's Black. Comm. App.
3 Star. 25, Edw. 3, ch. 2; 1 Hale P.C. 259.
4 See 4 Black. Comm. 85 to 92; 3 Wilson's Law Lect. 96, 97, 98, 99; l
Tuck. Black. Comm. App. 275.
CH. XXXIX.] DEFINITION OF TREASON. 669
which violent factions, the natural offspring of free governments, have
usually wreaked their alternate malignity on each other.1
§ 1793. It was under the influence of these admonitions
history and human experience, that the convention deemed it necessary to
interpose an impassable barrier against arbitrary constructions, either by
the courts, or by congress, upon the crime of treason. It confines it to
two species; first, the levying of war against the United States; and
secondly, adhering to their enemies, giving them aid and comfort.2 In so
doing, they have adopted the very words of the Statute of Treason of Edward
the Third; and thus by implication, in order to cut off at once all chances
of arbitrary constructions, they have recognized the well-settled
interpretation of these phrases in the administration of criminal law,
which has prevailed for ages.3
§ 1794. Fortunately, hitherto but few cases have occurred
in the United
States, in which it has been necessary for the courts of justice to act
upon this important subject. But whenever they have arisen, the judges
have uniformly adhered to the established doctrines, even when executive
influence has exerted itself with no small zeal to procure convictions.4
On one occasion only has the consideration of the question come before the
Supreme Court; and we shall conclude what we have to say on this subject,
with a short extract from the opinion delivered upon that
1 The Federalist, No. 43; 3 Wilson's Law Lect. 96.
2 See also Journ. of Convention, 221, 269, 270, 271.
3 See 4 Black. Comm. 81 to 84; Foster, Cr. Law, Discourse I. But see 4
Tuck. Black. Comm. App. Note B.
4 See 4 Jefferson's Corresp. 72, 75, 78, 83, 85, 86, 87, 88, 90, 101, 102,
103. See Burr's Trial in 1807; 3 Wilson's Law Lect. 100 to 106.
670 CONSTITUTION OF THE U. STATES. [BOOK III.
occasion. "To constitute that specific crime, for which the prisoners, now
before the court, have been committed, war must be actually levied against
the United States. However flagitious may be the crime of conspiring to
subvert by force the government of our country, such conspiracy is not
treason. To conspire to levy war, and actually to levy war, are distinct
offences. The first must be brought into open action by the assemblage of
men for a purpose treasonable in itself, or the fact of levying war cannot
have been committed. So far has this principle been carried, that, in a
case reported by Ventris, and mentioned in some modern treatises on
criminal law, it has been determined, that the actual enlistment of men to
serve against the government does not amount to levying war. It is true,
that in that case the soldiers enlisted were to serve without the realm;
but they were enlisted within it, and if the enlistment for a treasonable
purpose could amount to levying war, then war had been actually levied."
§ 1795. "It is not the intention .of the court to say, that
can be guilty of this crime, who has not appeared in arms against his
country. On the contrary, if war be actually levied, that is, if a body of
men be actually assembled for the purpose of effecting by force a
treasonable purpose, all those, who perform any part, however minute, or
however remote from the scene of action, and who are actually leagued in
the general conspiracy, are to be considered as traitors. But there must
be an actual assembling of men for the treasonable purpose, to constitute a
levying of war.1
1 Ex parte Bollman, 4 Cranch, 126. See also United States v. Burr, 4
Cranch, 469 to 505, &c.; Serg. on Const. ch. 30, (2 edit. ch. 32;) People
v. Lynch, 1 John. R. 553.
CH. XXXIX.] EVIDENCE OF TREASON. 671
§ 1796. The other part of the clause, requiring the testimony of two
witnesses to the same overt act, or a confession in open court,1 to justify
a conviction is founded upon the same reasoning. A like provision exists
in British jurisprudence, founded upon the same great policy of protecting
men against false testimony, and unguarded confessions, to their utter
ruin. It has been well remarked, that confessions are the weakest and most
suspicious of all testimony; ever liable to be obtained by artifice, false
hopes, promises of favour, or menaces; seldom remembered accurately, or
reported with due precision; and incapable, in their nature, of being
disproved by other negative evidence.2 To which it may be added, that it
is easy to be forged, and the most difficult to guard against. An
unprincipled demagogue, or a corrupt courtier, might otherwise hold the
lives of the purest patriots in his hands, without the means of proving the
falsity of the charge, if a secret confession, uncorroborated by other
evidence, would furnish a sufficient foundation and proof of guilt. And
wisely, also, has the constitution declined to suffer the testimony of a
single witness, however high, to be sufficient to establish such a crime,
which rouses against the victim at once private honour and public
hostility.3 There must, as there should, be a concurrence of two witnesses
to the same overt, that is, open act of treason, who are above all
1 See United States v. Fries, Pamph. p. 171.
2 4 Black. Comm. 356, 357.
3 See 4 Black. Comm. 357, 358.
4 United States v. Burr, 4 Cranch, 469, 496, 503, 506, 507.
672 CONSTITUTION OF THE U. STATES. [BOOK III.
§ 1797. The subject of the power of congress to declare the
treason, and the consequent disabilities, have been already commented on in
1 See ante, VoL III. § 1291 to 1296.