THE importance of this subject merits a separate chapter.

It was highly proper, perhaps absolutely necessary, that a crime, the commission of which must owe its existence to the formation of the government, should be both recognised and defined in the Constitution.

Although it is a general principle that all governments must be understood to contain within themselves the materials for their own preservation, and it could not be supposed that the national government now created was to depend on the individual states for protection against traitors, yet to have left the power of self-defence to inference and to argument, would have been unwise.

The unity of the government in its limited character required from the judicial authority, which appertained to it, a concurrent aid, simple and uniform in its nature, and adequate in its effect. To leave this offence liable to prosecution in the state courts only, would have been to hazard the consequences of a variety of opinions and discordances of adjudication, and, perhaps, occasionally, to the inconvenience of encountering some political reluctance or dissatisfaction on the part of the states. For although, as will be hereafter more fully shown, the judicial power is, in its nature, superior to the bias of party or personal motives; yet it is prudent, whenever it is practicable, to guard against the possible relaxation of this exalted principle. It was also recollected that in the proceedings preparatory to the trial, much is to be done by inferior officers, among whom such independence is not always to be found.

The United States, therefore, justly reserved to themselves the right to punish this high offence, and the state courts, since the adoption of the Constitution, have abstained from intermeddling with prosecutions on account of it. 1

But something. more than the recognition of the crime, and the provision of exclusive tribunals for its punishment, was requisite for the security of the people. It is of all offences that which it is the most necessary to define with precision.

The natural inclination of those who possess power, is to increase it. History shows that to enlarge the description of treason has often been resorted to as one of the means of increasing power. To have left to the legislature an unlimited right to declare what should amount to this crime would have been less consistent with public safety, than to fix, by common consent, its plain definition and exact limits. It is, so far, withheld from the power of those who, under the influence of sudden resentment or ambitious views, might unreasonably extend its character; while, on the other hand, except by the voice of the people at large, acting through the medium of a change of the Constitution itself, it cannot be contracted to a narrower compass, which might weaken the safeguards of the general system.

In giving the definition, general principles only can be adopted; it rests with the judicial power to determine whether the acts that may be committed, fall within these principles.

Treason is the attempt of one or more individuals, who are citizens or subjects of a government, to subvert and destroy it. The intention must be that this end shall be effected by force, in some stage of the proceeding, but the offence may be complete before any force is actually used.

It is one of those crimes which may not be accomplished by a single act; but, on the contrary, is in its very nature progressive yet continuous. Robbery, murder, and many other crimes, are or may be effectuated in a short space of time; and when the body is deprived of life or the goods are taken from the spot, the perpetration of the guilt is full and entire: but the attempt to subvert a government is not a momentary act; combinations are formed, unlawful schemes devised and pursued; opposition is commenced and carried on, and the crime is ever the same; the protraction of time may increase the terror and the injury, but in a legal view they do not enhance the guilt: in its outset it is deemed the highest crime that can be committed, and of course, no subsequent circumstances can raise it higher.

But, from the different nature of governments, there is a difference in the manifestations of treason in a monarchy and in a republic. In the former, it is considered as an offence against the supreme executive magistrate; in the latter it is an offence against the body of the people. Hence, to slay or to endeavour to slay the king, is, in itself, high-treason, although it may be the uncounselled thought and unassisted act of a single individual; but in a republic, not the life of a monarch, but the life of the republic is at stake. There must in the latter case be a combination with others; for no man could be supposed capable of intending singly and alone to subvert a government formed on the authority of the people. But those with whom he combines may not, themselves, be guilty of treason. The citizen who unites himself with a hostile nation, waging war against his country, is guilty of a crime of which the foreign army is innocent; with him it is treason, with his associates it is, in the code of nations, legitimate warfare. If he should be made prisoner and proceeded against as a traitor, it is against the usage of nations for those who have accepted his co-operation to object to the course which the laws of his own country impose on him.

Treason is declared to consist only in levying war against the United States, or in adhering to their enemies, giving them aid and comfort. The term levying war is understood to have been taken from the English statute of 25th Edward III., and receives the same construction with us which is given to it in that country.

The war which is spoken of embraces, as before observed, both hostilities from abroad and internal rebellion.

All insurrection, the object of which was to suppress an office of excise established under a law of the United States, and the marching with a party in arms to the house of the excise officer, and committing acts of violence and outrage there, with a view by force and intimidation to prevent the execution of the law, has been held to amount to a levying of war against the United States. 2 A conspiracy to subvert by force the government of the United States, violently to dismember the Union, to coerce repeal of a general law, or to revolutionize a territorial government by force, if carried into effect, by embodying and assembling a military body in a military posture, is an overt act of levying war; and not only those who bear arms, but those who perform the various and essential parts which must be assigned to different persons, for the purpose of prosecuting the war, are guilty of the crime. 3

Similar acts committed against the laws or government of a particular state, are punishable according to the laws of that state, but do not amount to treason against the United States; and on the other hand, in case of a war between the United States and a foreign nation, adhering to such foreign nation, and giving them aid and comfort in the prosecution of the war, amounts to treason against the United States, and not against the state of which the party is a citizen. 4

The restrictions are dictated by a spirit of humanity. No person shall be convicted of this crime, unless on the testimony of two witnesses to the same overt act, or on confession in open court. A confession out of court, although before a magistrate, is not sufficient; but after the overt act of treason is proved by two witnesses, it may be given in evidence by way of corroboration. 5 The testimony of the two witnesses must be to the same overt act, and not, as in England it may be, to two different acts of the same species of treason.

It is not within the scope of this work to notice all the legislative provisions which have since been made in respect to trials for treason; it is sufficient to say, that they pursue the same liberal and humane spirit for the purpose of affording to the accused the utmost latitude of defence, but in case of his conviction, congress, which has the power to declare the punishments has imposed that of death. But the forfeiture of life is not, with us, aggravated by refined and useless cruelty. Who can read without horror the punishments of Ravaillac and Damiens, or the sentences, in modern times deemed too barbarous to be enforced, against traitors in England?

The restriction on congress in respect to the punishment is, that no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.

Corruption of blood is derived from the common law of England, and signifies that an attainted person can neither inherit land from his ancestors, nor retain what he is in possession of, nor transmit it by descent to his heirs, nor shall any person make title by descent through him, though from a more remote ancestor.

In respect to the forfeiture, the meaning seems to be, that congress shall not impose a forfeiture beyond the term of the offender's life, but it may be abolished altogether, and in this sense, it has been understood and acted on in the law, for the punishment of certain crimes against the United States, passed on the 30th of April, 1790, the language of which is as follows: — no conviction or judgment for any of the offences aforesaid, (in which are included treason, murder, robbery, piracy, and other crimes,) shall work corruption of blood or any forfeiture of estate.

But a future legislature is neither bound to enforce this humane part of the act, nor to continue other parts which bear the cast of some severity.

The immediate forfeiture of the possessions of an offender, although its hardship in capital cases is felt, not by himself, but by his family reduced to want, has been vindicated on the supposition, that it would tend to set the paternal feelings in motion on the side of the commonwealth; acerbum, says Cicero in a letter to Brutus, parentum scelera filiorum poenis lui, sed hoc preclare legibus comparatum est, ut caritas liberorum amicitiores parentes reipublicæ redderet.

And such considerations may have some effect; but the depravity that leads to the hazard of life, seldom refrains from the commission of crime by adverting to the sufferings of children. The bad citizen is most commonly a bad parent.

The affliction felt by such near relations, both for the guilt and the loss of the parent, is unreasonably aggravated by their being thus subjected to partake, though in a different form, of the punishment inflicted, when, in common with their fellow citizens, they may have sincerely abhorred the crime.

But while in this particular, opinion has been divided, all seem to have condemned, and many to have been at a loss to account for the extension of this penal principle to the destruction of the power to inherit through the person attainted.

We cannot be reconciled to it, by being told that property being the creature of society, we have no right to complain of the manner in which it is regulated, 6 for, on such grounds, the most unjust laws might be defended.

But we may account for its origin from a former state of society, which has been greatly altered in modern times. It is an ancient feudal principle, that where there is no inheritable blood, the land shall escheat to the lord of the fee. Applying, or rather perverting the doctrine of present forfeiture to the incapacity of taking by descent, was the first and very easy step in a process, by which all that would have vested in the criminal, became the property of the lord. The avidity of the lord, which was thus gratified, cast about for still more prey and as the attainder of the offender removed him from being the immediate object of a descent, the principle, it was found, could also be successfully applied to his being the channel through which others might inherit. If the grandfather, after the attainder of the son for treason or felony, died seized of land and intestate, the grandson could not inherit, because he could not be his heir, as he was not the heir of his own father. By a fiction engrafted on the substantial punishment of the father, the grandfather was considered as dying without heirs, and his lands also escheated to the lord.

Thus the doctrine is resolved into an odious fiction, founded on a compound of cruelty and avarice, springing from a perversion of the system of tenures, and at variance with the liberal principles of modern times and the very elements of justice.

Had it been prohibited by the Constitution in regard to all offences whatever, it would have merited public approbation.

1. If this provision had not been made, the state courts would not have refused to sustain such prosecutions. See post ch. xxix.

2. United States v. Vigol, 2 Dallas, 346. United States v. Mitchell, ib. 348.

3. 4 Cranch, 470. United states v. Burr et al.

4. Lynch's case in New York, 11 Johnson, 553.

5. United States v. Fries, printed report of the trial, p. 171.

6. Considerations on the law of forfeitures, attributed to Charles Yorke.

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