The Treason Clause

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.

—Joyce Lee Malcolm

Introduction

This essay begins with a survey of the early development of the treason acts in England, which lays the groundwork for the Treason Clause in the American Constitution. It also examines the Constitutional Convention’s definition of treason, the ratification debates, early practice in America, later cases, and treason trials. This essay concludes with questions to consider—most significantly why the trial for treason has become so rare.

History Before 1787

The legal concept of treason, or betrayal, emerged from the Middle Ages. Early English law divided treason into high treason and petit treason.¹ High treason struck at the bond between subject and sovereign—the very basis of the state—and was regarded as the most heinous of crimes. It encompassed several crimes and therefore deserved the harshest punishment. Petit treason was the crime of betrayal of one subject by another. For example, if a servant killed his master or a priest killed his superior, that would be petit treason. It was also petit treason if a wife killed her husband, but not if a husband killed his wife.

The Treason Act of 1351 defined high treason in law for the first time and is one of the oldest pieces of legislation still on the statute books.² This act of King Edward III spelled out examples of high treason. A lead offense was conspiracy against the king or even “compassing or imagining” killing the sovereign, his queen, or the heir apparent. It was also an offense to kill certain officers of state (the Lord Chancellor, Lord High Treasurer, and judges) when they were carrying out their official functions. Other offenses included violating the royal blood line (rape, adultery); fighting against the sovereign within his kingdoms; helping his enemies; or giving aid and comfort to the king’s enemies. The scope of high treason fluctuated with the exigency of the times.

The English Reformation and the separation from the Roman Catholic Church added new dangers and produced other treason acts. The 1534 Treason Act made anyone a traitor who deprived the king, queen, or their heirs of the “dignitie, title or name of heir royal estates.”³ The Treason Act of 1547 expanded treason to include religious treasons, treasonous thoughts, political plots, and revolutionary groups and for the first time required that two witnesses testify to the crime of treason.⁴ However, this two-witnesses rule was not always followed. For example, Algernon Sydney was charged with high treason for the Rye House plot to kill Charles II and his brother James. During that notorious trial, there was no second witness against him. Instead, Sydney’s unpublished manuscript, Discourses Concerning Government, was used as a second witness.

After the Glorious Revolution of 1688, more procedural guarantees were added. Those accused of high treason were provided a copy of their indictment, defense witnesses were required to testify in person, and the accused were permitted to have counsel. The offense itself, however, was still quite broad. Sir William Blackstone warned about the risks of this poorly defined crime: “[I]f the crime of high treason be indeterminate, this . . . is sufficient to make any government degenerate into arbitrary power.”⁵ Nevertheless, the English Treason Act of 1795 made it treason to “compass, imagine, invent, devise or intend the death or destruction, or any bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint, of the person of . . . the King.”⁶ Although that act was meant to be temporary, it would remain in place until 1998 when punishment for treason was changed to life in prison.⁷

Colonial American treason laws generally mirrored English law. After 1763, however, tensions grew. American juries proved unwilling to find Americans guilty of treason and balked at the plan to move trials to England. The Declaration of Independence specifically criticized the king for “transporting us beyond Seas to be tried for pretended Offenses.”⁸

During the American Revolution, state legislatures expanded the definition of treason and tried some individuals for treason with limited success.⁹ Following the Revolution, in treason prosecutions, the courts had to determine whether the accused was an alien levying war against the United States or just a disloyal citizen who was engaged in sedition.¹⁰

The Constitutional Convention

During the Constitutional Convention, treason made an early appearance in a Committee of Detail draft that was “evidently an outline of the Pinckney Plan.”¹¹ The text provided that the Senate and House of Delegates “shall have the exclusive Power of declaring what shall be Treason & Misp. [misprision] of Treason agt. U. S.”¹² Another Committee of Detail draft in the handwriting of Edmund Randolph of Virginia granted Congress the power “[t]o declare it to be treason to levy war against or adhere to the enemies of the U. S.”¹³

The Committee’s report was delivered to the Convention on August 6.¹⁴ The proposed Treason Clause had four elements: (1) “Treason against the United States shall consist only in levying war against the United States, or any of them” (“any of them” referred to any of the individual states); (2) “The Legislature of the United States shall have power to declare the punishment of treason”; (3) “No person shall be convicted of treason, unless on the testimony of two witnesses”; and (4) “No attainder of treason shall work corruption of bloods nor forfeiture, except during the life of the person attainted.”¹⁵

The delegates debated this clause on August 20. James Madison of Virginia thought the “definition” of treason was “too narrow,” as it “did not appear to go as far as the Stat. of Edwd. III.”¹⁶ George Mason of Virginia would have adopted the Statute of Edward III.¹⁷ Edmund Randolph of Virginia would have added the “giving them aid and comfort” language from the British statute.”¹⁸ The delegates voted unanimously to remove “any of them.”¹⁹ Only treason against the United States would be prohibited. The delegates also added “to the same overt act” after “two witnesses.” Benjamin Franklin of Pennsylvania observed that “perjury [is] too easily made use of against innocence.”²⁰ Finally, Mason moved to insert “giving them aid [and] comfort.”²¹ The Convention agreed.

The text referred to the Committee of Style provided that “[t]reason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. The Legislature shall have power to declare the punishment of treason. 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.”²² No further changes were made.²³

The Framers of the American Constitution took Blackstone’s warning seriously and defined treason narrowly. Treason can “only” consist of two offenses: “levying War against” the United States and “adhering to [the] Enemies” of the United States by “giving them Aid and Comfort.” The concept of “levying war . . . looks inward, to internal rebellions.”²⁴ Those who “owe allegiance to the United States and rebel against it are not enemies, but traitors subject to prosecution for levying war.”²⁵ The “enemies provision,” however, “looks outward; an enemy is always a foreign state, group, or person who owes no allegiance to the United States.”²⁶ These are the only ways to commit treason. Conviction requires two witnesses “to the same overt act” or a confession in open court. These elements closely track the English treason acts. Treason is the only crime defined in the Constitution.

Other provisions of the Constitution also reference treason. Representatives and Senators can be arrested while in session for treason,²⁷ a person can be impeached for treason,²⁸ the Fugitive from Justice Clause recognizes that states can charge a person with treason,²⁹ and the President can pardon the offense of treason.³⁰ (See Essay Nos. 31, 117, 141, and 105.)

The Ratification Debates

During the Constitutional Convention, James Madison thought the definition of treason was too “narrow,” but in Federalist No. 43, he defended this provision. Madison warned that “violent factions” could “wreak[] their alternate malignity on each other” through “new fangled and artificial treasons.” The Constitution limits these risks 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.” In Federalist No. 84, Alexander Hamilton mentions the narrow definition of treason as one of the guarantors of rights that make a separate bill of rights unnecessary.

In the Pennsylvania Convention, James Wilson defended the provision, arguing that “Congress can neither define nor try the crime.”³¹ He observed that in England, a “very great part of their tyranny over the people had arisen from the extension of the definition of treason.”³² It was true that the Constitution defined “only” two types of treason, but some Anti-Federalists warned that Congress could use another label, such as “sedition,” to prohibit political speech.³³ At the ratifying conventions, several states favored a bill of rights that would expressly protect free speech to prevent such prosecutions.

Early Practice

In Ex parte Bollman (1807), the U.S. Supreme Court narrowed the scope of the Treason Clause.³⁴ Two associates of Aaron Burr were charged with treason for conspiring to levy war against the United States. Specifically, the defendants were alleged to have conspired to subvert the government by force. The allegations were sensational: They recruited troops, procured maps, and drew up plans, and there was an “actual assemblage of men for the purpose of executing a treasonable design.”³⁵ The Court, per Chief Justice John Marshall, held that these acts did not constitute treason. Moreover, the Court rejected the concept of “constructive treason.”

Marshall also presided over the treason trial of Aaron Burr.³⁶ In that case, Burr was not present in the assembly of men but could be found guilty of treason on the testimony of two witnesses if he aided in the levying of war. Conviction required participation in an overt treasonable act. Ultimately, Burr was found not guilty.

The first two convictions for federal treason occurred in Philadelphia in the wake of the Whiskey Rebellion.³⁷ This uprising in western Pennsylvania arose following a federal excise tax on whiskey in 1791–1794.³⁸ In these cases, the courts defined treason broadly as people combining to defeat or resist a federal law.³⁹ President George Washington pardoned both men.⁴⁰ Five years later, after Fries’s Rebellion, the courts adopted an even broader definition of treason.⁴¹ The legitimacy of designating these acts as treason remains controversial.

Later Cases

In the wake of World War II, the Supreme Court narrowed the scope of the treason clause. For example, Cramer v. United States (1945) held that speeches in favor of the enemy, opposition to government measures, or striking in defense plants failed to constitute “aid and comfort” and that “if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.”⁴² Yet Haupt v. United States (1947) modified the two-witness standard to permit other evidence of treasonable intent. This decision made intent and an overt act amenable to different standards of proof.⁴³ Kawakita v. United States (1952) found that to convict a dual citizen of treason, he still must have allegiance to the United States. Kawakita, a dual citizen, was found guilty by a jury on the basis of overt acts.⁴⁴ He was the last person convicted of treason in U.S. history.⁴⁵

Trials for Treason

Since the standards for treason are high, trials for treason have been rare at both the national and state levels. Individuals have been prosecuted instead under laws for conspiracy and sedition. These crimes target activities that undermine the state without directly attacking it. Julius and Ethel Rosenberg, for example, were convicted in 1953 of espionage and were executed.⁴⁶ Aldrich Ames, a CIA agent who betrayed American personnel to the Soviet Union, was charged with espionage in 1994.⁴⁷ John Walker Lindh, who allowed himself to be captured by the Taliban, was prosecuted in 2002 for conspiracy and aiding the enemy rather than treason.⁴⁸ The last person indicted for treason was Adam Gadahn in 2006, who was indicted for aiding and abetting al-Qaeda and appearing in their videos threatening Americans.⁴⁹ In 2015, he was killed in a drone attack in Pakistan.

Open Questions

• Is it better to rely on seditious conspiracy and sedition to treat betrayal of the United States and aiding its enemies?
• Section 3 of the Fourteenth Amendment imposes disqualification if a person has given aid and comfort to the enemies of the United States. Does this phrase have the same meaning as similar language in the Treason Clause?⁵⁰ (See Essay No. 198.)

1. 2 Sir Frederick Pollock and Frederic William Maitland, The History of English Law Before the Time of Edward I 523–32 (2d ed. 1898). ↩︎
2. 25 Edw 3 Stat. 5 c2. ↩︎
3. 26 Henry VIII, c. 13. ↩︎
4. 1 Edw. 6 c. 12. ↩︎
5. 4 Blackstone 75. ↩︎
6. 36 Geo. III. c. 7. ↩︎
7. Crime and Disorder Act 1998, https://perma.cc/K5BU-YR7A. ↩︎
8. Declaration of Independence. ¶ 21. ↩︎
9. Carleton E.W. Larson, The Revolutionary American Jury: A Case Study of the 1778–1779 Philadelphia Treason Trials, 61 SMU L. Rev. 1441, 1451–1452 (2008). ↩︎
10. Respublica v. Chapman, 1 U.S. (1 Dall.) 53 (Pa. 1781); Josh Blackman, Original Citizenship, 159 U. Pa. L. Rev. PENNumbra 95, 113–116 (2010). ↩︎
11. 2 Farrand’s 134. ↩︎
12. Id. at 136. ↩︎
13. Id. at 137, 144, 168. ↩︎
14. Id. at 177. ↩︎
15. Id. at 182. ↩︎
16. Id. at 345. ↩︎
17. Id. ↩︎
18. Id. ↩︎
19. Id. at 346. ↩︎
20. Id. at 348. ↩︎
21. Id. at 349. ↩︎
22. Id. at 565, 571. ↩︎
23. Id. at 601, 661. ↩︎
24. Carlton F.W. Larson, On Treason: A Citizen’s Guide to the Law 134 (2020). ↩︎
25. Id. ↩︎
26. Id.; Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 350, 531 (2024). ↩︎
27. Art. I, § 6, cl. 1. ↩︎
28. Art. II, § 4. ↩︎
29. Art. IV, § 2, cl. 2. ↩︎
30. Art. II, § 1, cl. 8. ↩︎
31. 2 Elliot’s 487. ↩︎
32. Id. ↩︎
33. Akhil Amar, America’s Constitution: A Biography 244–45 (2005). ↩︎
34. 8 U.S. (4 Cranch) 75. ↩︎
35. Id. at 128. ↩︎
36. United States v. Burr, 25 Fed. (No. 14,692d) (C.C.D. Va. 1807). ↩︎
37. Letter to George Washington from “Incog.” (June 10, 1795), https://perma.cc/9H9P-46RQ. ↩︎
38. Peter Kotowski, Whiskey Rebellion, Geo. Wash. Pres. Library Digital Encyclopedia, https://perma.cc/NZ9L-6XH9. ↩︎
39. Carlton F.W. Larson, The Forgotten Constitutional Law of Treason and the Enemy Combatant Problem, 154 U. Pa. L. Rev. 863, 904 (2006). ↩︎
40. George Washington, Proclamation—Granting Pardon to Certain Persons Formerly Engaged in Violence and Obstruction of Justice in Protest of Liquor Laws in Pennsylvania (July 10, 1795), https://perma.cc/SCZ7-9E6P. ↩︎
41. Case of Fries, 9 F. Cas. 826, 840 (Iredell, Circuit Justice, C.C.D. Pa. 1799) (No. 5126). ↩︎
42. 325 U.S. 1, 29 (1945). ↩︎
43. 330 U.S. 631 (1947). ↩︎
44. 343 U.S. 717 (1952). ↩︎
45. The Case for Treason, CBS News (Dec. 17, 2001), https://perma.cc/M59N-ECRL. ↩︎
46. Federal Bureau of Investigation, Famous Cases and Criminals: Atom Spy Case/Rosenbergs, https://perma.cc/H2X7-53NW. ↩︎
47. Federal Bureau of Investigation, Famous Cases and Criminals: Aldrich Ames, https://perma.cc/L8HN-88E6. ↩︎
48. United States v. Lindh, 227 F. Supp. 2d 565 (E.D. Va. 2002). ↩︎
49. U.S. Citizen Indicted on Treason, Material Support Charges for Providing Aid and Comfort to al Qaeda, U.S. Dep’t of Justice (Oct. 11, 2006), https://perma.cc/8XH3-5GZG. ↩︎
50. Blackman & Tillman, supra at 521–22. ↩︎