Treason, the only crime defined by the U.S. Constitution, has all but disappeared from the legal landscape. The framers of the Constitution may have started treason down this path. The bitter English experience with the misuse of treason charges for political purposes led them to define the crime narrowly and to make it difficult to prove. Only two acts constitute treason: levying war against the United States and adhering to an enemy of the United States, giving it aid and comfort. The framers drew this definition from the English law of treason, but omitted a third method of committing the crime—compassing or imagining the king’s death—that had proved most susceptible to politically motivated abuse. The framers also specified that treason could be proved only by a confession in open court or by the testimony of two witnesses to the same overt act.
The first cases to command judicial attention arose from ex-Vice President Aaron Burr’s plot to cleave the trans-Appalachian states from the nation, conquer Mexico, and make from them a huge western empire. In Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807), a case against one of Burr’s associates, Chief Justice Marshall established that ‘‘levying war’’ meant involvement in actual hostilities against the United States (as opposed to preparation for such hostilities). In the treason trial of Aaron Burr, Marshall, sitting as a trial judge, applied the Constitution’s two-witness requirement so rigorously as to make the treason case against Burr virtually impossible to prove. These early, restrictive precedents further pushed the crime of treason along its course toward desuetude.
Although the Supreme Court stated in the Prize Cases, 2 Black 635 (1863), that those who took up arms against the Union in the secessionist cause were traitors, few treason cases emerged from the Civil War, and many of those convicted of treason received pardons. John Brown, who in 1859 organized a raid on the federal arsenal at Harper’s Ferry in hopes of triggering a slave insurrection, was the last person in the United States convicted and executed for treason against state (as opposed to federal) authority.
World War II produced a number of treason prosecutions, all of them charges that Americans gave the enemy aid and comfort. Two went to the Supreme Court, and the results were mixed. In Cramer v. United States, 325 U.S. 1 (1945), the Supreme Court read the treason clause’s two-witness requirement very narrowly, holding that ‘‘every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses.’’ On the other hand, in Haupt v. United States, 330 U.S. 631 (1947), the Court took a more permissive approach to ‘‘aid and comfort,’’ holding that a father’s provision of shelter and other minor sorts of support to his Nazi saboteur son met the constitutional test.
No conduct has been the basis of a treason charge in the United States since the end of World War II. This is not solely because of the narrowness of the crime’s definition or the difficulty of proving it. It is also because Congress has filled the field that treason once occupied with other partly overlapping crimes: espionage, sedition, aiding enemy prisoners of war, offering material support to terrorists, and the like.
ERIC L. MULLER
See also 9/11 and the War on Terror; Proof beyond a Reasonable Doubt