Our founders were traitors. This is a fact they carried with great weight as they sought to create a more perfect Union. Before the words were inscribed in one of the most debated pieces of text today, they were debated even by the drafters. The Treason Clause of the United States Constitution, nestled in Article III, Section III, was designed to limit the federal government’s power to prosecute treason. It states:

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.^[1]

Pre-Revolution History

Our country adopted English law because it was familiar, especially to those founders with legal educations.^[2] In its present form, the Treason Clause most resembles the English Treason Act of 1352. It considered a person guilty of treason for any of the following acts: imagining or conspiring the death of the King/Queen and the oldest son/heir to the throne; violating the King’s companion, unmarried oldest daughter, or the wife of his oldest son; levying war against the King and his realm; adhering to the King’s enemies or giving them aid and comfort; or slaying the Chancellor or any of the King’s justices.^[3]

Prior to the Act of 1352 (“Act”), treason was adjudicated through common law and subject to various interpretations.^[4] The Act, which provided a statutory definition of treason, “…remov[ed] many of the vagaries of the common law and limit[ed] the extent to which treason law could be expanded or recklessly prosecuted.”^[5] Over 300 years would pass before England adopted the another treason statute. The Trial of Treasons Act in 1696 established evidentiary procedures that required at least two witnesses to the same overt act, two witnesses to different overt acts of the same treasonous plot, or confession of the accused in court.^[6]

Colonies adopted similar treason law provisions tailored to addressed local problems. For example, The Massachusetts Bay Colony Acts of 1706 contemplated the circumstances of the French and Indian Wars, specifically deeming it treason to provide subjects of the French King or Indians any intelligence or aid.^[7] It stated, “if…any person or persons shall…during the continuance of the present war with France, be convicted of holding a traitorous correspondence with any of her majesty’s enemies…” should be guilty of high treason.^[8] The specific provisions about “present war with France,” parallel the future requirement of an enemy in an open war with the United States. At this point, traitors were extradited to England for trial.^[9]

In 1675, Virginia Governor William Berkeley appointed his wife’s nephew, Nathaniel Bacon to a high office.^[10] Just a year later, Bacon led a rebellion against Berkeley, whom many regarded as slow and weak in responses to Indian Attacks.^[11] Following the Rebellion, now known as Bacon’s Rebellion, Berkeley executed 23 of the rebels (Bacon was not one).^[12] News of the executions caused King Charles II to reportedly remark, “That old fool has hanged more men in that naked country than I have done for the murder of my father.”^[13] There was at least one other notable case of treason in colonial times- when Nicoloas Bayard was nearly executed for treason for circulating petitions critical of the government.^[14]

All of these events and legislation undoubtedly had an impact on shaping the future Treason Clause of the U.S. Constitution. In June 1776, the Continental Congress appointed John Adams, Thomas Jefferson, Edward Rutledge, James Wilson, and Robert Livingston to the “Committee on Spies.”^[15] Their task was to determine how spies for the British should be handled.^[16] The Committee needed to provide a timely report back to Congress because Dr. Benjamin Church, the official doctor of the Continental Army, was caught providing intelligence to the British.^[17] Church was a member of Boston’s elite and considered by most to be a true patriot.^[18] Paul Revere, however, remarked that Church seemed less loyal to the patriotic cause than he let on.^[19] Ultimately, Church was caught sending a ciphered letter to the British through one of his former mistresses.^[20] Church refused to confess, but American officers were able to decipher its contents, which contained intelligence on colonial forces.^[21] Although the intelligence was deemed rather underwhelming, it nonetheless evidenced Church’s loyalty to Britain.^[22]

Massachusetts had civilian jurisdiction over Church, but its laws at the time defined treason as an act against the Crown.^[23] Therefore, any treason trial for Church in Massachusetts would itself be a de facto declaration of independence by the colony.^[24] This weighed heavily on John Wilson and John Adams who felt that treason against the new Union needed to be addressed by the Continental Congress.^[25] The Church debacle demonstrated the problems with existing laws.

Soon, Washington faced two betrayals. The first betrayal was by one of his personal guards, Sergeant Thomas Hickey.^[26] Hickey and several civilians, including the mayor of New York, were involved in a counterfeiting scheme aimed at recruiting pro-British conspirators.^[27] Unlike the civilians in the conspiracy- who posed a similar problem to Washington as Church had for Wilson and Adams, Hickey was a soldier and could be court-martialed. He was found guilty of mutiny and sedition, and “[for] treacherously corresponding with, enlisting among, and receiving pay from the enemies of the united American Colonies.”^[28] Washington wrote to Congress that he was hopeful that Hickey’s punishment would serve as an example “of the many salutary consequences and deter others from entering into the like traitorous practices.”_^[29] Shortly after the New York conspiracy, the Continental Congress adopted resolutions that addressed loyalty and allegiance. Rather than disloyalty to the Crown, treason was now an act of disloyalty to the colonies.^[30] Upon the Committee of Spies’ recommendation, Congress declared all persons residing within any colony owed allegiance to it.^[31] And, if any person adhered to the King of Great Britain, “giving him aid and comfort,” they were guilty of treason.^[32] Congress also urged the colonies to pass laws for punishment of such offenders “as shall be provably attained of open deed.”^[33]

Less than two weeks after the resolutions were adopted, the Declaration of Independence was signed. Soon, New York, Massachusetts, Virginia, Maryland, Pennsylvania, and New Hampshire codified treason clauses. These early statutes borrowed heavily from the Treason Act of 1351 and the Trial and Treason Act of 1696. The second betrayal Washington faced was by his friend and fellow general, Benedict Arnold. At Arnold’s request, Washington appointed him the commander of West Point in 1780.^[34] Arnold then devised a plot with a British military contact whereby he would surrender West Point to the British in exchange for a generous payment (over $4.5 million in 2019 currency).^[35] The plan failed when his British military contact, John André, was caught by three militiamen who discovered papers detailing the plot.^[36] Oddly, Arnold was waiting for Washington to join him for breakfast when he was notified that André was caught.^[37] Because he immediately fled to British safety, Arnold never stood trial for his treason. ^[38]

Constitutional Amendment

On October 17, 1781, British General Lord Charles Cornwallis surrendered to General Washington at Yorktown, effectively ending the Revolutionary War.^[39] The 13 states^[40] formed a federal government under the Articles of Confederation.^[41] However, the Founders soon realized that the Articles of Confederation were not enough to keep the nation united without a strong federal government.

In 1786, tensions rose between a group of farmers in rural Massachusetts and state legislators, eager to pay off debts from the Revolutionary War, who imposed heavy tax burdens on residents.^[42] Daniel Shays, a Continental Army veteran, led a militia farmers in a rebellion against the State and an attempted seizure of the United States’ Springfield Armory.^[43] The Rebellion was eventually defeated by state and private militia, but the federal government’s inability to recruit and fund an army exposed its weaknesses.^[44] The events in Massachusetts drew the attention of prominent war figures^[45] and, on May 25, 1787, the Constitutional Convention commenced in Philadelphia.

James Madison, Thomas Jefferson, and James Wilson provided the most recorded insight into the meaning behind the words of the Treason Clause. Jefferson believed that the words of any treason clause to date left too much room for subjective interpretation.^[46] He surmised to George Wythe that a new universal treason clause needed to be carefully worded with limited language.^[47] Jefferson also foreshadowed the need to limit the role any future judiciary would have in interpreting the crimes.^[48] Without a clear definition, what would prevent judges from situationally applying inconsistent treason definitions?

Jefferson worried about political exploitation of treason indictments- the kind applied under British rule. ^[49]  James Wilson shared this perspective, especially in 1778, when 23 British sympathizers were charged with treason under Pennsylvania law.^[50] During the “Philadelphia Assize,” Wilson, as defense counsel, advocated in favor of strict evidentiary procedures and a narrow definition of treason like those in 25 Edward III and 7 William III.^[51] The judge agreed with Wilson and 21 of the accused were acquitted.^[52] The other two accused confessed to treason.  Later, Wilson would be a prominent voice in the debate on treason and executive power at the Constitutional Convention.^[53] In 1791, Wilson explained his approach in those trials and in drafting the words of the Treason Clause, when he penned Lectures on Law:

To secure the state, and at the same time, to secure the citizens- and according to our principles, the last is the end, and the first is the means- the law of treason should possess the two following qualities. 1. It should be determinate. 2. It should be stable.^[54]

Wilson’s statements capture the belief of the Framers- individual liberty is more important than a government, but the two must necessarily coexist. The statement also makes clear that the Framers, or at least Wilson, desired a treason law that could not be adjudicated arbitrarily or easily manipulated by persons in power. The first draft of the treason clause granted Congress the power to define and punish treason without limitation.^[55] The new version limited treason to a constitutional definition. This restraint on Congressional power demonstrates the fear that Congress, elected by the people and serving in political capacities, would amend treason as political tides turned, rather than allow it to remain immune to politics.

Even with this new, tighter definition, James Madison expressed concern on the debate floor that the language “did not appear to go as far as” the English statutes.^[56] Troubled by the prospect of states not having power, Madison preferred for the legislature to have the power to define treason because otherwise it “would bar a discretion which experience might enlighten, and which might be applied to good purposes as well as bad.”^[57] Following some debate on whether the two witnesses needed to witness the same overt act or different overt acts and what an “overt act” means, the delegates voted to insert the phrase, “to the same overt act,” as part of the two-witness requirement.^[58] Madison recorded Benjamin Franklin’s support for this refined definition of witness requirement, stating Franklin regarded “prosecutions for treason were generally virulent, and perjury too easily made use of against innocence.”^[59] Again, this debate and Franklin’s perspective on the abuse of treason prosecutions demonstrate the deliberately chosen words and forethought of the founders. The breadth of debate on the Treason Clause evidences the Framers’ belief that treason was a serious offense. They were worried about a future where, like the past under British rule, someone could be accused of treason and easily convicted based on lies of another.^[60] Under British law, a guilty traitor was “attained,” and their property was forfeited to the Crown- even if their descendants were innocent.^[61] The new American treason law granted Congress the power to establish punishment for treason but forbade it from including corruption of blood for forfeiture extending beyond the offender’s life.^[62]  

Madison provided insight into this adoption as noted in Federalist No. 43. Published on January 23, 1788, Madison wrote:

…But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.^[63]

Madison’s words in Federalist No. 43 indicate that the Framers were well aware that passionate political disagreements were a consequence of democracy. To prescribe treason in the Constitution, narrowly defined, out of reach of the political figures, the Founders protected future individuals from a potentially tyrannical government. Justice Story later reflected that Congress was prohibited from establishing corruption of blood punishment for two reasons that seem incredibly practical.^[64] Punishment of the traitor alone is just punishment of his crime, but the punishment of his offspring deprives the livelihoods of innocent people. Story also concluded that corruption of blood punishment was “a bad policy too” because those it affected would harbor ill feelings towards the government and might revolt.^[65] Consequently, the Founders intended the Treason Clause to apply only in the most severe cases, with actual proof of an actual crime.

Marshall on Treason

Not long after the Constitution was adopted, John Mitchell and Philip Wigle were the first two Americans convicted of treason and sentenced to be hanged for their role in the Whiskey Rebellion- an insurrection against the federal government for imposing a whiskey tax.^[66] President Washington pardoned both men before either hanging.^[67] Another rebellion, this time over property taxes, resulted in the treason conviction of John Fries.^[68] Fries, the namesake of Fries’s Rebellion, was pardoned by President John Adams against the advice of his Cabinet.^[69] Adams saw Fries’s Rebellion as a highly violent and dangerous “political dispute,” but not treason.^[70]

When Aaron Burr was charged with treason for allegedly conspiring to get the Western territories to secede from the union, it was on the heels of Burr’s political downfall.^[71] Burr, while serving as Jefferson’s Vice President, shot and killed Alexander Hamilton in an infamous duel just two years before the alleged conspiracy.^[72] Even though Jefferson never held Burr in high regard, any remaining favor between the two certainly dissipated after Hamilton’s death.^[73] When Jefferson learned of his former Vice President’s alleged plot from James Wilkinson, Burr’s counterpart in the conspiracy, he ordered Burr be arrested and stand trial for treason.^[74] Burr orchestrated a legal defense team that constituted, in modern terms, a “dream team.”^[75] Two others were charged and tried for treason in connection with the Burr plot- Dr. Justus Erich Bollman and Samuel Swartwout.^[76] Bollman and Swartwout were tried for their complicit roles in Burr’s scheme but eventually released because the government failed to provide evidence of their guilt.^[77] In his Ex Parte Bollman opinion, Marshall focused on the words of the Treason Clause before ultimately deciding “conspiracy is not treason [because] there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war.”^[78] Thus, any act of treason must be an overt act, exactly as stated.

Jefferson and Marshall, distant cousins, famously disagreed on many matters.^[79] However, the two both had reason to dislike Burr- who conspired against one and killed the friend of the other.^[80] Some speculate that Ex Parte Bollman prompted Jefferson to offer pardons in exchange for any testimony of Burr’s plans that would ensure his demise.^[81] For, Jefferson already declared to Congress that Burr was guilty.^[82] However, Jefferson’s prosecutorial plot was no match for Justice Marshall’s jurisprudence.

Marshall’s deference to the words of the Constitution illustrates his belief in its power over politics but also the integrity of the Supreme Court. Marshall ensured Burr received a fair hearing.^[83] Marshall set aside any personal animosity towards Burr and put justice first when he maintained, “Treason can be perpetrated only in open day and in the eye of the world.”^[84] Absent any hard evidence of Burr’s actual intent or testimony of firsthand witnesses, Burr was acquitted.^[85] In this case, the government did not provide sufficient evidence that Burr committed an overt act against the government. It is ironic that Jefferson attempted to manipulate the trial of Aaron Burr in precisely the manner he once feared political enemies might. The case of Aaron Burr’s treason trial is unique because even then, with drafters in the courtroom, the words of the Constitution were debated.

It would be nearly a half century before another high-profile case of treason at a time when the nation more divided than ever. During the entirety of the Civil War, just one person was executed for treason against the United States. William Bruce Mumford was hanged in 1862 for tearing down a United States Flag from a U.S. Mint in New Orleans.^[86] During the Civil War President Lincoln twice offered pardons to any person willing to take an oath to support the Constitution and the Union and abide by all federal laws (including those forbidding slavery). Lincoln’s offers did not extend to those in military or civilian custody, or to anyone who treated black prisoners wrongfully.^[87] After Lincoln’s death and the end of the War, President Andrew Johnson issued “unconditional pardons to all who participated in the rebellion.”^[88] While these pardons were not subject to review of court, Lincoln and Johnson surely extended them in the spirit of unity as the Founders would have intended.^[89] The Founders hoped for a union that would endure divisions. Though the Civil War is more complex than a “political dispute,” it nonetheless produced a divided country. Even Robert E. Lee, General of the Confederate Army, and Jefferson Davis, President of the Confederacy were reportedly so torn at the idea of war.^[90]

Jefferson Davis was caught and captured in his wife’s clothes.^[91] After Union soldiers apprehended Davis, he sat in a prison cell for three years waiting for trial.^[92] Several U.S. Attorneys indicted him for high treason for his role as President of the Confederacy.^[93] Ultimately it was decided that he should face trial in the United States District Court for the District of Virginia, where both U.S. District Judge John C. Underwood and Chief Justice Samuel Chase would hear the case.^[94] However, after four years of delay, for reasons including President Johnson’s impeachment, Jefferson Davis’s trial never occurred.^[95] Davis was one of many beneficiaries of President Johnson’s full and unconditional pardons on Christmas Day 1868.^[96]

1945-Present

After President Andrew Johnson issued his Christmas Pardons, the Supreme Court would not hear another civil treason case until World War II.

In 1942, 16 German nationals who previously resided in the U.S., returned via Nazi submarines.^[97] Two teams comprised of eight each departed separate submarines in the United States- one in Long Island, New York and one near Jacksonville, Florida.^[98] Of the eight, two were naturalized American citizens.^[99] Once ashore, the Germans quickly changed into civilian clothes and buried their explosives.^[100] Their plan, known as Operation Pastorius, was to rendezvous in Cincinnati, Ohio before attacking various American targets that were crucial to the economy.^[101] The Germans in Long Island encountered a Coast Guard member and offered him money to walk away.^[102] The Coast Guard immediately reported the incident to his supervisor and thus began a manhunt for the eight Germans.^[103] Eventually, one called off the plot and turned everyone into the FBI.^[104]

Afterward, Anthony Cramer, a German-born American citizen, was indicted for his associations with one of the Pastorious conspirators.^[105] According to the New York Times, Cramer was given the lighter sentence of 45 years in prison, rather than life “…because of his hazy notion of the destructive mission of the submarine-borne saboteurs to whom he had given aid.”^[106] His conviction rested on the theory that Cramer gave “aid and comfort” to one of the saboteurs and thereby an enemy of the United States when he met with and agreed to store money for one of the saboteurs.^[107] Oddly, the main witness in Cramer’s trial was the fiancé of a saboteur.^[108] After two sets of arguments, the Court overturned Cramer’s conviction. In a 5-4 decision, Justice Robert H. Jackson wrote for the majority and concluded that Cramer, while he maintained “a strong affection for his fatherland,” presented no indications of disloyalty to America.^[109] The Court’s opinion focused on the phrase “overt act,” and examined the original meaning of Article III Section III. Jackson wrote:

A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country’s policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions which do aid and comfort the enemy — making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength — but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.^[110]

Jackson continued to say, “Our problem begins where the Constitution ends [,]” when holding that Cramer did not give aid and comfort because he lacked intent to “betray his country by means of the act.”^[111] What’s more, because Cramer merely held onto money (without knowing it’s intended use for destructive plots) and did not provide aid and comfort even in the slightest level of “[paying] for drinks,” the government did not meet its burden of proof.^[112]

In many ways, Justice Jackson channeled Chief Justice Marshall’s approach in the Aaron Burr matter with a detailed analysis of the words and the implications of the Treason Clause.^[113] But, Justice Jackson’s opinion went further by establishing that intent was necessary to “provide aid and comfort.”^[114] He noted that intent is necessarily inferred from the Treason Clause because treason requires conscious disloyalty to America.^[115] Jackson reasoned that treason was “the work of the shewed and crafty more often than the simple and impulsive.”^[116]

 In 1952, the Supreme Court upheld the treason conviction of Tomoya Kawakita.^[117] Kawakita was a Japanese-American who was in Japan at the outset of World War II.^[118] During the War, he worked as an interpreter for Japan at a Prisoner of War (POW) camp.^[119] Even though he became a Japanese citizen, he returned to the U.S. under a renewed passport after the War.^[120] When a former POW saw him and reported it to the FBI, Kawakita was arrested and charged with treason for his role assisting Japan in the torture American POWs.[121] Unlike any of the other Supreme Court cases dealing with treason, Kawakita v. United States was not an evidentiary controversy. ^[122] Instead, the issue was whether Kawakita, a dual citizen, could be guilty of treason against the U.S. even though he believed his U.S. citizenship was revoked.^[123] In a 4-3^[124] decision, the Supreme Court upheld Kawakita’s conviction and death sentence from the lower court, holding that, “An American citizen owes allegiance to the United States where he may reside.”^[125] President Eisenhower commuted Kawakita’s sentence to life in prison, and President Kennedy pardoned him. Kawakita was the last American convicted of Treason.^[126] 

Conclusion

Whether the Treason Clause is applied as the Founders intended depends on the context. Legally, precedent demonstrates the words of Article III Section III of the United States Constitution is applied under the strict standards the Founders intended. However, if history tells us anything, it is that the Founders did not take the term “traitor” lightly. In today’s environment, where media and politicians use “treason” and “traitor” freely, one should take comfort with the knowledge that the Constitution safeguards against baseless charges of treason. Perhaps the next time our elected officials accuse someone of treason, they keep in mind the words of Justice Robert H. Jackson:

Time has not made the accusation of treachery less poisonous, nor the task of judging one charged with betraying the country, including his trier, less susceptible to the influence and suspicious of rancor.^[127]