Chapter XLIII.

Treason, defined; its Punishment.

Sec.1.  The constitution defines treason, as follows:  “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”  Art. 3, sec. 3.  A proneness to construe less aggravated crimes into acts of treason, made it proper that the constitution should define the crime.  The term levying war has the sense here which it was understood to have in the English statute, from which it was adopted.  An assemblage of men for a treasonable purpose, such as war against the government, or a revolution of any of its territories, and in a condition to make such war, constitutes a levying of war.

Sec.2.  War can be levied only by the employment of force; troops must be embodied; men must be openly raised; but there may be treason without arms, or without the application of force to the object.  When war is levied, all who perform a part, however remote from the scene of action, being leagued in the conspiracy, commit treason.  But a mere conspiracy to levy war is not treason.  A secret, unarmed meeting of conspirators, not in force, nor in warlike form, though met for a treasonable purpose, is not treason; but these offenses are high misdemeanors.

Sec.3.  The constitution also prescribes the proof necessary for the conviction 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.”  No evidence less than this should be considered sufficient to convict a person of a crime for which he is to suffer death.

Sec.4.  “Congress shall have power to declare the punishment of treason.”  Art. 3, sec. 3.  By the common law, the punishment of treason was of a savage and disgraceful nature.  The offender was drawn to the gallows on a hurdle; hanged by the neck and cut down alive; his entrails taken out and burned while he was yet alive; his head cut off; and his body quartered.  Congress, in pursuance of the power here granted, has very properly abolished this barbarous practice, and confined the punishment to simple death by hanging.

Sec.5.  But the same clause provides, that “no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.” Attainder literally signifies a staining, or rendering impure; but it here means a conviction and judgment in court against the offender.  By the common law, the sentence of death for treason was made to affect the blood of the traitor; so that he could neither inherit property nor transmit it to heirs; but his estate was forfeited.  This practice, so unjust to the innocent relatives of an offender, is properly abolished by the constitution; and congress has declared that “no conviction or judgment shall work corruption of blood, or any forfeiture of estate.”  So that while this law continues, there is no forfeiture, even during the life of the person attainted.