The Punishment of Treason Clause

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.

—Joyce Lee Malcolm

Introduction

This essay continues from the prior entry on the Treason Clause (see Essay No. 137) but focuses on the punishment for treason. The English punishment for treason was extremely harsh because treason was thought to be especially heinous and to include several crimes, each of which was to be punished.

History Before 1787

At common law, punishment for high treason in England was especially brutal. A convicted traitor was hanged and cut down before dead. Then his entrails were drawn out and burned, his body was divided into four quarters, and the quarters were posted prominently as a warning to others. This process was known as hanging, drawing and quartering. The traitor was also attainted. The convicted individual would forfeit his title and property to the Crown, thereby depriving his heirs of the estate. Corruption of blood deprived an attainted person of his property, and he could not inherit or pass on property to his heirs. Thus, the traitor’s family was punished for the crime of one of its members.

Before the Revolutionary War, the American colonists insisted that the English acts and punishment for high treason should not apply to them. In 1774, James Duane of New York, a member of the Continental Congress, agreed that the colonies were entitled to the benefits of the English common law and statutes but rejected the authority of English law with regard to treason outside the English realm. These acts were to be in force, Duane insisted, only in remote and foreign parts that lacked tribunals for a legal trial. John Rutledge of South Carolina also rejected these English treason acts.¹

It is notable that Americans, even in the throes of the American Revolution, were reluctant to charge their fellow citizens with treason. Between September 1778 and April 1779, for example, twenty-four men were tried for treason in Pennsylvania. Of these, only four were found guilty, and even in these cases, the juries asked for leniency from the death penalty. The punishment, unlike punishment under English law, was hanging. Two men tried in Pennsylvania were executed by hanging. This reluctance to bring charges of treason seems to have been general. During the war, Loyalists were banished, and their properties were confiscated and sold at auction. The British also were cautious about bringing charges of treason in America for fear of retaliation against their troops.²

The Constitutional Convention

The Constitution specifies that “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”³ The Constitution is explicit both in defining treason and in mirroring the English requirement that there be two witnesses testifying to the same act or open confession in court. The Constitutional Convention spelled out the definition and standard of evidence to be used in prosecuting treasonable offenses to prevent the power granted in Article III from being used against political opponents. Although this might have been left to the courts, the delegates clearly felt that it was so important that they should fix the definition and rules themselves. The definition they adopted ruled out any treason in thought.

The Constitutional Convention had several debates over two questions related to the punishment for treason: Could the President pardon treason, and who should decide the punishment for treason? The Framers agreed that the legislature should decide the punishment for treason and that punishment must not include corruption of blood except during the life of the convicted individual. They also agreed that the President could pardon treason. (See Essay No. 105.)

The Ratification Debates

In Federalist No. 74, Alexander Hamilton argued that it was safe for the President to pardon treason because he could be impeached if he misused the power. During the Pennsylvania Convention, James Wilson agreed that Congress should decide the punishment for treason but said that punishment must not include “corruption of blood or forfeiture, except during the life of the person attainted.”⁴ Tench Coxe of Pennsylvania, writing as A Freeman, emphasized that treason against the United States should not involve corruption of blood, which would leave “unoffending families of attainted persons stripped of all hereditary property.” He praised the Constitution for that decision. But, he was still concerned about attainder. Coxe wrote that “by the existing laws of all the states, the unoffending families of attainted persons, stripped of all hereditary rights, and condemned to the bitter portion of extreme poverty, are left . . . to meet the trials of the world alone.”⁵

The Anti-Federalists were in complete agreement with the Federalists on this issue. Brutus, perhaps the shrewdest of the Anti-Federalists, approved the Constitution’s declaration that “no bill of attainder shall be passed” and felt it “proper the legislature should be deprived of the exercise of this power, because it seldom is exercised to the benefit of the community, but generally to its injury.”⁶ (See Essay No. 69.)

Early Practice

In 1790, the First Congress passed the Act for the Punishment of Certain Crimes Against the United States.⁷ The punishment for treason was death by hanging, not the hanging, drawing, and quartering of English practice. The American statute imposed a lesser punishment for misprision of treason (knowing but concealing the commission of treason): imprisonment not to exceed seven years and a $1,000 fine.

Modern Practice

Congress has reduced the punishment for treason over the years, even as prosecution for treason has remained rare. Today, the punishment for treason varies from the death penalty to imprisonment of not less than five years, to a fine of not less than $10,000, to being incapable of holding any office under the United States.⁸

The United Kingdom modified its punishment for treason more slowly than the United States. In 1814, Parliament abolished corruption of blood for all crimes except high treason, petty treason, and murder.⁹ Petty treason was abolished by the Offences Against the Person Act of 1828. Four decades later, the punishment of corruption of blood for murder and high treason was finally abolished by the Forfeiture Act of 1870.

Open Questions

• Why has punishment for the serious crime of treason been reduced from death to five years in prison and a $10,000 fine?
• Should treason be made easier to prove rather than having the punishment reduced to insignificance?

1. 1 Letters of Members of the Continental Congress 43–44, 75 (Edmund Cody Bennett ed., 1921). ↩︎
2. Carlton F.W. Larson, The Revolutionary American Jury: A Case Study of the 1778–1779 Philadelphia Treason Trials, 61 SMU L. Rev. 1441, 1452 (2008); Carlton F.W. Larson, The Trials of Allegiance: Treason, Juries, and the American Revolution (2019). ↩︎
3. Art. III, § 3. ↩︎
4. 2 Elliot’s 469. ↩︎
5. Friends of the Constitution: Writings of the “Other” Federalists 1787–1788, 99 (Colleen A. Sheehan & Gary L. McDowell eds., 1998). ↩︎
6. Storing 2.9.103. ↩︎
7. 1 Stat. 112 (1790). ↩︎
8. 18 U.S.C. § 2381. ↩︎
9. 54 Geo. 3 c. 145. ↩︎